OFFICIAL OPINIONS
OF THE
ATTORNEY-GENERAL
OF
2[l|p fflnmmnnmpaltli of ilaaaarljUHFtta
PUBLISHED BY THE
ATTORNEY-GENERAL
Volume VII
1923-1925
lM-9-'28, No. 3397
THIS VOLUME CONTAINS
THE OPINIONS OF ATTORNEY-GENERAL
JAY R. BENTON, 1923 - 1925
ALSO TABLES OF STATUTES AND CASES
CITED, AND AN INDEX-DIGEST
PREFACE
This volume is issued by the Attorney-General in
pursuance of the authority contained in the Acts of
1928, chapter 405, section 3.
This volume is in substantial uniformity with the
preceding volumes. The work of preparation has
been in charge of Mr. Louis H. Freese, Chief Clerk.
JOSEPH E. WARNER,
Attorney-General.
Boston, January, 1929.
Table of Statutes cited or referred to in this
Volume.
! 10126 .
!§ 1831-3
United States Compiled Statutes.
PAGE
. 104
. 557
1014 .
5219 .
5219, cl. 1(e)
5278 .
United States Revised Statutes.
PAGE
507
542, 543, 544, 548, 549, 654, 655
551
. 104, 610
United States Constitution.
Art. I, §§7, 12
Art. I, § 8
Art. I, § 10
Art. IV, §§ 1, 2
Art. IV, § 2 .
Art. VI .
PAGE
. 138
137, 138, 173
11, 137
. 609, 610
. 104
. 610
Constitution of the Commonwealth.
Dec. of Rights, art. IX
art. X .
art. XIII
art. XIX
art. XXX
Const., pt. 2, c. I, § I, art. Ill
§ I, art. IV
§ II, art. II
§ II, art. Ill
§ III, art. XI
c. II, § I, art. IV
§ I, art. IX
§ II, art. II
§ III, art. I
§ III, arts. V, VI, VIII, IX
§ IV, art. I
§ IV, art. II
c. Ill, art. I
art. II
arts. II, V
art. Ill .
92, 110
XI
123,
132,
189,
45, 108,
110, 111,
447, 621,
126,
PAGE
621, 622
12, 13
119, 122
622, 623
. 51
. 189
622, 625
108, 701
. 625
. 625
. 624
49, 580
. 625
624, 742
. 625
. 580
. 625
581,, 625
. 594
624, 625
. 107
Vlll
STATUTES CITED.
Constitution of the Commonwealth — Con.
Coii.st., pt. 2, c. VI, arts. I,
AiTipnd'ts Const., art. II
art. IV .
art. VI .
art. XIV .
art. XVI .
art. XVII
art. XXXVII
art. XLIV
art. XLVI
art. XLVI, § 2
art. XLVII
art. XLVIII
art. XLIX
art. LVII .
art. LVIII
art. LXIII. I 1
art. LXIII, § 5
art. LXIV
art. LXVI
art. LXIX, § 2
II
PAGE
. 625
. 621,622
107, 128, 581, 625
. 719
. 621
. 625
44, 45, 625
. 128, 581, 625
541, 546, 547, 548, 550, 551
67, 76, 77, 502
74, 616, 617, 641
246, 250
747, 749
. 181
. 582
. 625
. 131
. 628
. 44
. 273
. 694
Statutes of the Commonwealth.
page
PAGE
1781, c. 17 95
1874, c. 221 145
1793, c. 42, §6
. 61
1876, c. 203, §§ 14, 16
. 346
1795, c. 81
. 121
1877, c. 218 .
. 73
1818, c. 130, § 6
. 100
1878, c. 214 .
. 578
1833, c. 148, § 3
. 61
§2
. 492
1842, c. 60
. 145
c. 244 .
. 675
1844, c. 102, § 1
. 61
§3
. 696
1847, c. 224 .
. 675
1881, c. 304, §§ 1-3
41, 303
1849, c. 158, §1
. 61
§6
. 42
1851, c. 7
. 500
1882, c. 208 .
. 493
1855, c. 414, §§ 2, 4,
5
. 371
1884, c. 265 .
. 505
1860, c. 206 .
. 659
1885, c. 323, § 2
675, 696
c. 217 .
. 278
c. 344, § 3
. 317
c. 221, § 3
. 459
1886, c. 32
. 73
c. 3, § 1 .
. 455
1887, c. 85, § 15
. 313
1864, c. 208 .
. 300
c. 252, § 11
. 460
1865, c. 230 .
. 342
1888, c. 318, §§ 2, 4
. 316
c. 283 .
. 304
c. 349 .
. 296
§§1,4,5
. 301
§6
. 297
1867, c. 275 .
. 265
c. 413 .
. 313
c. 285 .
. 145
1889, c. 279, § 2
. 228
1868, c. 328 .
. 342
c. 282 .
. 74
1869, c. 182, § 3
. 101
c. 305 .
. 367
c. .384 .
. 268
c. 465, § 1
. 178
1870, c. .392, § 3
. 342
1890, c. 315, § 2
31
3, 314, 315
STATUTES CITED.
IX
Statutes of the Commonwealth — Con.
1890,
1891,
1892,
1893,
1894.
1895,
1896,
1897,
1898,
1899,
1901,
1902,
1903,
1904,
1905,
1906,
1907,
c. 373 .
c. 440, § 8
c. 364, § 15
c. 404 .
c. 407 .
c. 450 .
c. 399 .
c. 481, §§41,42
c. 491, § 41
c. 532 .
c. 548 .
c. 488, § 4
c. 504 .
c. 276 .
c. 447 .
c. 165 .
c. 294, § 1
c. 500 .
§10
c. 282, § 2
§3
c. 467 .
c. 469 .
c. 496, § 11
c. 578 .
§1
§ 6-10
§11
§28
c. 408, §§ 6, 42
c. 447 .
c. 439 .
c. 525 .
c. 342 .
c. 483 .
§1.2
c. 322 .
c. 349, § 1
c. 437 .
§72
c. 465, § 3
c. 314 .
§2
c. 344, § 1
c. 189 .
c. 210 .
c. 291 .
§ 10
c. 479
c. 550
675,
PAGE
. 74
. 532
. 236
. 297
. 259
. 297
. 294
. 493
. 460
. 297
17, 28
. 671
. 505
. 460
. 536
. 460
. 505
28, 338
31, 32, 339
. 354
. 355
472, 473
. 557
. 371
32, 339, 340
30, 31, 32, 248
29, 30, 32
. 31
30, 31
. 460
. 557
. 493
. 297
. 302
367, 368
. 364
. 460
. 408
. 302
. 304
. 661
. 698
. 97
. 235
314, 315
697, 698
. 697
695, 696, 698, 736
. 346
. 238
1907,
1908,
c. 574 .
c. 576, § 75
§76
c. 584 .
c. 59, cl. 5th
c. 390, § 2
c. 511 .
c. 605 .
§§ 1, 2,
1909, c. 419
c. 439 .
c. 444 .
c. 486, § 20
§§ 1, 20, 30
§ 30 .
c. 490, pt. Ill, § 41
§ 57
pt. 1, §§4, 16
c, 504, § 62
c. 514, § 25
c. 527, § 8
c. 534 .
c. 536 .
1910, c. 567
1911, c. 291
c. 532, §3, par. (2)
c. 727. § 3
c. 740 .
c. 751 .
1912, c. 723, §§ 1, 2
c. 726, § 5
1913, c. 758 .
c. 803, §§ 1, 3
c. 806 .
c. 819 .
1914, c. 18
§1
c. 437 .
c. 795. § 4
1915 (Gen.) c. 221, §
c. 267
c. 268
1916, c. 225 .
§§ 75, 76
(Gen.) c. 37
c. 98
(Gen.) c. 242, § 3
PAGE
. 406
484. 485
. 484
453, 454
. 364
319, 322
. 490
. 160
. 159
. 160
. 159
. 302
. 359
. 730
. 566
. 38
. 302
cl. 3rd . 306
306, 733, 734
-18 . . 42
208, 209
. 571
. 498
. 275
. 238
. 397
. 347
. 290
440. 441
. 160
. 19
. 74
. 521
. 146
. 146
. 599
. 494
. 113
. 320
319, 323
. 160
. 710
. 743
. 236
. 160
. 522
. 524
. 314
. 383
. 418
STATUTES CITED.
Statutes of the Commonwealth — Con.
1920 c. 327, § 2
c. 368, § 3
c. 555, § 1
c. 560
c. 572
211,
PAGE
. 357
. 229
538, 539
113, 446
. 743
. 744
, 247
. 247
. 731
. 724
. 414
. 414
. 146
. 431
213
212
145, 146, 681
. 462
187, 188
244, 252
. 247
. 188
422, 423
. 593
. 496
. 684
. 23
422, 423
. 504
. 709
. 234
. 409
. 177
450, 453
. 454
. 660
. 165
. 294
. 461
343, 344
. 177
86,87
. 724
75, 437
646, 647
244, 248
. 387
. 171
. 457
. 525
STATUTES CITED.
XI
Statutes of the Commonwealth — Con.
1922
1, sub. sec.
c. 545,
PAGE
. 411
96, 97, 98, 100
. 387
. 509
. 234
. 125
. 394
. 496
287, 288
. 162
402, 403, 405
734, 735
. 705
704, 705
. 131
. 530
. 688
5
. 700
. 588
. 284
. 608
. 418
. 431
244, 248
671, 672
. 338
. 517
687, 688
704, 705
. 389
. 390
. 411
. 720
. 560
. 527
. 403
517, 687
1923,
1924,
494, item 6236
19
c. 93
c. 152
c. 156
c. 165
c. 183
c. 203
c. 251
1925,
1, 2,
c. 369
c. 395
c. 416
c. 442, §
c. 450
c. 457
c. 462
c. 480
c. 492, §
c. 497
— §
e. 18
c. 90
§
c. 124
c. 169
c. 201, § 3
c. 209, § 3
§1
c. 295, § 8
§§9,10
c. 339, §§2, 3
1, 2
2, 3
3, 4,
PAGE
. 403
603, 627
. 527
. 505
. 461
. 505
. 651
. 743
744, 745
. 709
704, 705
. 555
747, 748
. 606
. 605
. 731
. 721
. 660
471, 472
556, 649
. 602
454, 456
. 597
. 518
565, 566
. 564
704, 705
. 704
. 706
. 651
. 749
. 651
. 685
. 745
744, 746
. 673
672, 673
. 719
1906, c. 11
1911, c. 101
1915, c. 134
Resolves.
PAGE
483, 484
. 129
. 42
1922, c. 50
1924, c. 20
PAGE
. 248
. 540
1641-1647
Colonial Ordinance.
PAGE
. 262
xu
STATUTES CITED.
1693-94, c. 3, § 12
Province Laws.
PAGE I
. 44 1779-80, c. 18
PAGE
. 635
7, §5 .
60, § 26
Revised Statutes.
PAGE
. 573 c. 119, § 12
. 539
PAGE
. 265
Public Statutes.
PAGE
PAGE
c.
11, § 5, cl. 3rd .
. 177
c. 90, § 14
. 460
— §§ 14-16, 4 .
. 42
c. 104, § 14
. 493
c.
19, § 3
. 750
c. 113, §32
. 28, 29, 32
c.
27, § 21 .
. 237
§33
. 33
c.
41, §9
. 495
c. 116, §20,
cl.
3rd .
. 367
Revised Laws.
page
PAGE
c. 12, § 5 . . . 178, 577, 579
c. 96, § 3 . . . 464, 465, 750
§§ 16-18, 4
. 42
§§ 15, 18
. 316
c. 19 .
. 230
c. 103, § 9
. 397
§7
228, 229
c. 104, §§ 27, 28
. 493
c. 25, § 26 .
. 236
c. 112, § 44 .
. 29
c. 35, § 5
8
c. 113, § 26 .
. 267
c. 39, § 9
. 495
c. 116, §§2, 5 .
. 314
0. 42, §§ 1, 2, 4, 8
. 347
c. 125 .
. 575
e. 65, § 15 .
. 418
c. 204, §§ 42, 44
. 400
c. 90, § 31 .
. 460
General Laws.
c. 1, § 7 . .
c. 3, §§ 9, 20
c. 4, § 6 .
§7
§9
c. 5, § 1 .
§2
§ 10
§ 12
c. 6, § 4 .
§21
c. 7 .
c. 8, §§4,9,
c. 9, § 11
c. 10, § 5
c. 11, § 2
§3
12
PAGE
PAGE
. 234
c.
12,
§§ 1-11 . . . .45
. 702
—
—
§3
571, 726
. 585, 588
—
—
§9
. 377
236, 478, 684
. 723
§§23,24
§6
393
c.
13,
. 437
. 687, 688
. 456
. 517
§§ 16-18
§25 .
§5 .
668
394, 397
c.
15,
.495
. 518
c.
16,
§§1,2.
. 273
700, 701, 702
529, 530, 724
§3 .
§4
. 274
272, 274
—
—
. 687, 688
c.
28
. 509
. 297
c.
29,
§31 ;
. 330
. 324
c.
30,
§5
. 278
. 529, 530
. 529
§§8. 10
§21 .
TnA
330, 439, 448
. 530
c.
31
. 509
STATUTES CITED.
XllI
General Laws — Con.
31
32,
§3 .
§ 18 .
§§ 19, 21-28
§20 .
§21 .
§26 .
§43 .
§44 .
§45 .
§§ 1-5 .
§1
§2
§4
§ 5 308,
§§ 6-19
35,
39,
40.
41,
44,
45,
46
48,
49,
52
53
194,
695, 596,
75, 308, 309,
. 438,
439,
554,
257.
437, 438.
220.
224,
§8
§9
§ 10 .
§§49-60
§57 .
§§ 75, 76
§91 .
§§ 16. 29
§34 .
§§ 11, 12, 14
§1
§ 15 .
§22 .
§32 .
§2 .
§§ 16, 20, 29
§§ 73-79, 80, 81
§ 107 .
§ 109 .
§7 .
§8
§ 14 .
§1
§§ 17, 21
§62 .
§§ 35. 36
§1
§§ 18-22
§§ 19-22
§24 .
§34 .
222 223 224
113, 446,
PAGE
37.75
38
570
228
229
199
557
90, 91 1
698,
699
698,
699
698
76
437
693
440.
442
439
440
440
693
555
630
258
555
257
630
630,
631
646
647
647
521
523
631
656
657
588
236,
237
65
235.
675
235,
237
417
586
638,
639
586
127
598
597,
598
64
325
728
324
588
586
350
747
520
583.
584
113
520,
521
350
53.
54
55.
58,
59
60,
61
62
168
j§ 115,
\ 135
j 158
\ 16
517
l§9, 10
\27
J3
S§11, 15
S§ 12-14
5 29 .
5 57
j§ 79-81
116. 1
63, §
65.
66.
67,
69,
70
71. §
5
§ 43. 45
30 .
§ 30-52
32 .
39 .
41 .
42 .
51 .
52 .
§ 53-60
58 .
60 .
§ 61-66
71 .
1
2
3
10 .
§ 12,
15
9
177. 1
2, 23.
1
2
17. pt. II
§1-5 .
4
§ 61, 63, 64
65 .
18
29,42
PAGE
. 376
. 583
. 625
7
519, 520
530, 592
. 531
176. 571
. 684
525, 526
. 92
. 306
78, 573. 574, 580
. 304
. 42, 303
. 573
. 721. 723
. 644
. 406
40, 41, 741
. 496
. 526
86, 87, 299, 304
. 303, 547
. 655
. 655
. 217
. 218, 219
. 724
732, 734, 735
3, 733, 735
. 1, 3, 4, 5
. 734
. 32
724, 725, 727
98, 99, 100, 387
. 498
. 8, 9, 606
8. 324, 606
. 588
. 586
554, 555. 556
500. 502, 503, 504
593, 594, 700
. 504
. 463
. 347
, 503
. 683
. 685
XIV
STATUTES CITED.
General Laws — Con.
PAGE
. 463
. 495
. 347, 349
370, 374, 375
. 24
. 58
45 . . .21
. 59
. 404
. 745, 746
. 405
. 283, 405
. 745
. 638, 639
. 405
. 588
. 298
599, 600, 602
274, 275, 295
. 235
. 662
13, 515, 516, 653, 682
. 273, 275
95, 744
558, 673, 674, 750
. 316
. .660
. 268
. 259
. 260
. 261
. 142
. 52
. 166
. 702
. 702, 703
. 164
. 166
. 182
. 190
. 212, 213
. 537, 538
. 33
. 587
. 397
. 165
. 462
. 165
. 311, 312
. 311
c. 101
11, 13
78-90, 91
96. 99, 100
112 .
181, 183
182 .
c. 112
c. 127 .
§7
§§ 16, 17
§§ 131, 132
§§ 131, 133
§ 136 .
c. 128, § 14 .
§24 .
, 131
PAGE
. 418, 419
165. 312, 419
. 588
311, 312
. 417
. 166
. 389
. 166
659, 660
. 565
. 589
. 586
. 732
. 411
. 587
. 470
370, 375
. 371
. 165
. 10
. 462
. 668
. 667
665, 667
. 666
. 226
226. 227
225, 226, 227
. 343
. 470
. 85
737, 738
. 90
. 209
. 210
207, 208
. 626
. 627
. 628
. 210
. 750
003, 604
. 606
. 606
. 605
. 199
193. 287, 505
. 193
. 182
358. 359, 360
STATUTES CITED.
XV
General. Laws — Can.
PAGE
PAGE
c. 128, § 28 , . . . 358, 360
c. 158, § 36 588
c. 129, § 2
. 457
c. 159, § 91
. . . . .586
§7
. 457
c. 160, § 190 .
. 618
§8
. 4
58, 459, 460
c. 161, § 89 .
. 29
§11
. 457
§ 108 .
346, 347, 348, 349
§15
. 416
c. 164, § 116 .
. 587
§27
. 407
c. 168, § 47 .
. 344, 346
§32
. 459
§50 .
. 345, 346
§33
. 459, 460
§ 54 201, 202, 363, 364, 366, 367,
c. 130, §§ 24, 32, 33
. 267, 268
368, 369, 685, 687
§§32,36,37,59
. 608
c. 169, §§ 2, 3 166
c. 131, §§ 3-14
. 409, 410
c. 171, §5
. 160
§ 16 .
. 60
§§ 11, 13, 20,
23
. 161
c. 136, § 17 .
. 211
c. 172, § 3
. 314, 315
c. 138, § 32 .
. 588
§7 .
2
§76 .
. 3
31, 362, 751
§18 .
2, 314, 315
§82 .
. 362
§25 .
. 629
c. 140, §§ 2, 42, 59, 7
. 165
§61 .
. 200
§90 .
. 606, 607
c. 175
. 474, 648, 668
§§96-114 .
. 607
§ 2 . 535,
536,
537, 552, 568, 716
§96 .
. 160, 165
§3 .
. 414, 535
§ 130 .
. 162
§§9-12
. 680
c. 142, § 3
. 238, 239
§14 .
. 650, 651
§§4,14
. 398
§18 .
. 71
c. 143, § 11 .
. 589
§20 .
. 561
§§ 62-71
. 494
§32 .
. 537
c. 146, §§ 34-41
. 231
§ 47 356,
357, 4
30, 535, 536, 537
c. 147, § 5
. 294
§49 .
, 535
c. 148, § 14
. 294
§51 .
. 357
§§ 30-5
1
. 453
§52 .
. 430
§30
294, 450
§§63,66
. 431
§31
453, 454
§99 .
. 670
§45
293, 451
§105 .
72, 477, 479
c. 149, §§ 1. 17
. 146
§ 107 .
. 476, 477, 479
§30 .
. 148
§ 108 .
. 415
§36 .
. 149
§110 .
. 413, 414
§56 .
145, 148, 681, 682
§118 .
716, 717, 718
§§ 1, 60
-83, 8.
}, 86 422, 423, 425
§ 119 .
. 716
c. 150, § 5
. 162, 163
§ 132 . 436, 481, 484, 485, 486,
c. 152, § 56 .
71,72
487, 690, 691
§69 .
. 309
§ 133 414
§73 .
c. 155, § 6
§9
§10 .
§ 15
. 310
. 477
. 752
751, 752
. 588
§ 140 4i
§ 142 .
§ 152 .
n, 48
2, 483, 484, 485,
486, 487
. 436
. 670, 716
§22 .
c. 156, §§ 41, 4^
I
79,80
. 315
§ 153 .
§ 157 .
. 679, 718
477, 479, 670
c. 158, § 17
586, 589
§§ 162-166 .
. 476
§31 .
. 586
§ 163 .
. 165, 477
XVI
STATUTES CITED.
General Law3 — Con.
c. 175, § 166
c. 176
\ 167 .
j 173 .
! 174 .
!§ 182-184
! 193 .
! 194 .
13, 14
16, 17, 19
35, 50
PAGE
176, 254, 255, 256,
556, 649
556, 649
649, 650
J14, 215, 490, 650
431, 488, 489
. 489
. 489
. 243
. 587
240, 241, 242
. 242. 588
. 588
. 643
. 361
. 284, 285
. 539
586, 589, 591
. 588, 589
. 728
. 729
. 150, 588
. 730
. 704
. 586
. 587
. 587
. 531, 532
. 707
c. 219
c. 220
6, 26,
PAGE
. 586
. 587
. 85
. 738
581, 585, 588, 591
. 248
45, 46
. 587
. 591
. 589
. 587
. 586
. 586, 587
. 181, 720
. 560
. 750
. 531, 532
. 702
399, 400, 532
. 400
326, 330, 399
. 399
. 327
52, 54, 56, 57, 157
. 588
. 522
. 121
. 192
286, 505
CASES CITED.
XVll
Table of Cases cited in this Volume.
PAGE
Adair v. United States, 208 U. S. 161 333
Adams v. Russell, 229 U. S. 353 192, 286
V. Tanner, 244 U. S. 590 . . 166
Adkins?). Children's Hospital, 261 U. S.
525
Aetna Life Ins. Co. v. Hardison, 199
Mass. 181
Agawam v. Hampden, 130 Mass. 528
Akers v. United New Jersey R. R., 43
N. J. L. 110 ....
Alderman v. Phelps, 15 Mass. 225
333
485
412
359
722
Alexander v. Big Rapids, 76 Mich. 282 359
V. Gordon, 101 Fed. 91 . . 644
Allen V. Boston, 159 Mass. 324 . . 677
V. Mass. Bonding & Insurance
Co., 248 Mass. 378 .. . 510
Allgeyer v. Louisiana, 165 U. S. 578 . 670
Alpha Portland Cement Co. v. Com-
monwealth, 244 Mass. 530 . . 550
American Pig Iron Storage Co. v. State
Board of Assessors, 56 N. J. L. 389 2
American Unitarian Assn. v. Minot,
185 Mass. 589 ... . 510
Amherst College v. Assessors of Am-
herst, 173 Mass. 232 . . . 574
V. Assessors of Amherst, 193 Mass.
168 574
Appleyard v. Massachusetts, 203 U. S.
222 105, 611
Arkadelphia Co. v. St. Louis S. W. Ry.
Co., 249 U. S. 134 ... 538
Armstrong v. Village of Fort Eduard,
159 N. Y. 315 . . . . 674
Arnold v. North American Chemical
Co., 232 Mass. 196 .. . 565
Astell V. Kansas, 209 U. S. 251 . . 408
Ashley v. Three Justices of Superior
Court, 228 Mass. 63 . . 289, 737
Atlee V. Packet Co., 21 WaU. 839 . 393,
396. 397
Attorney-General v. Abbott, 154 Mass.
323 265
PAGE
Attorney-General v. City of Cam-
bridge, 119 Mass. 518 . . . 661
V. Drohan, 169 Mass. 534 . 351, 707
V. EUis, 198 Mass. 91 . 265, 281
V. Herrick, 190 Mass. 307 . . 263
V. Loomis, 225 Mass. 372 . . 704
V. Mass. Pipe Line Gas Co., 179
Mass. 15 . . . . .4
V. Old Colony R. R. Co., 160
Mass. 62 13
V. PeUetier, 240 Mass. 264 45, 352, 361
V. Revere Copper Co., 152 Mass.
444
V. Tillinghast, 203 Mass. 539
V. Tufts, 239 Mass. 458, 537 45^
V. Vineyard Grove Co., 181 Mass.
507
V. WaUace, 7 B. Mon. (Ky.) 611
Averell i'. Newburyport, 241 Mass. 333 700
Ayers v. Hatch, 175 Mass. 489 . . 91
Babcock v. Mores Home for Infirm
Hebrews, 225 Mass. 418
Bacon v. Sandberg, 179 Mass. 396
Baker v. Commercial Union Assurance
Co., 162 Mass. 358 .. .
Baltimore v. Baltimore Trust Co., 166
U. S. 673 336
V. Hook, 62 Md. 371 . . 6.39
Bancroft v. Cambridge, 126 Mass. 438 64
V. Lynnfield, 18 Pick. 566 . . 70
Bannister v. Soldiers' Bonus Board,
43 R. I. 346 .... 256
Barron v. Boston, 187 Mass. 168 462, 701
Barrus v. Phaneuf, 166 Mass. 123 . 328
Bartlett, petr., 163 Mass. 509 . . 575
Bassing v. Cady, 208 U. S. 386 . 105, 611
Bates V. Selectmen of Westfield, 222
Mass. 296 91
Baxter v. Buchholz-Hill Co., 227 U. S.
637 727
Beals V. Brookline, 245 Mass. 20 . 640
263
707
515
265
151
180
512
492
XVlll
CASES CITED.
PAGE
Bellows Falls Power Co. v. Common-
wealth, 222 Mass. 51 . . .
Belmont v. Smith, 8 N. Y. Super. Ct.
(1 Duer), 675, 678 .. .
Bemis v. Wilder, 100 Mass. 446
Bent V. Emery, 173 Mass. 495 .
Berea College v. Kentucky, 211 U. S. 45
Betts V. Clifford, Warwick Lent As-
sizes, 1858 (Eng.)
Bickford v. Brooksville (1867), 55 Me.
89 196,
Biddinger v. Commissioner of Police,
245 U. S. 128 .
Bingham v. Commissioner of Corpora-
tions and Taxation, 249 Mass. 79 .
Binns v. United States, 194 U. S. 486 365
Bitterman v. Louisville & Nashville
R. R. Co., 207 U. S. 205
Blake v. Sanderson, 1 Gray, 332
Blumenstock Brothers Advertising
Agency v. Curtis Publishing Co., 252
U. S. 436
Bogigian v. Commissioner of Corpora-
tions and Taxation, 248 Mass. 545 725
Bogni V. Perotti, 224 Mass. 152
Boston V. Boston Elevated Ry. Co.,
213 Mass. 407
V. Chelsea, 212 Mass. 127
V. Jackson, 260 U. S. 309
V. Schaffer, 9 Pick. 415
V. Sears, 22 Pick. 122
V. Talbot, 206 Mass. 82
V. Treasurer and Receiver Gen-
eral, 237 Mass. 403 . 12, 331, 366,
571, 642
Boston & Albany R. R. Co. v. Public
Service Commissioners, 232 Mass.
358
Boston Beer Co. v. Massachusetts, 97
U. S. 25 . .
Boston Chamber of Commerce v. Bos-
ton, 195 Mass. 338
Boston Fish Market Corp. v. Boston,
224 Mass. 31 ... .
Boston Glass Manufactory Co. t.
Langdon, 24 Pick. 49 .
Boston, petitioner, 221 Mass. 468
Boston Railroad Holding Co. v. Com-
monwealth, 215 Mass. 493
Boston Water Power Co. v. Boston &
Worcester R. R. Corp., 23 Pick. 360 13
Bowen v. Dean, 110 Mass. 438 . . 99
302
715
466
21
353
327
611
497
618
466
159
333
252
123
366
136
417
67
745
14
640
465
5
412
41
166
701
21
342
727
41
PAGE
Bradley v. Frazcr, 54 la. 289 . . 343
Branahan v. Hotel Co., 39 Ohio St. 333 677
Brayton v. Fall River, 113 Mass. 218 677
Brazce v. Michigan, 241 U. S. 340
Briggs V. Cape Cod Ship Canal Co.,
137 Mass. 71 ... .
V. Rochester, 16 Gray, 337
Brimmer v. Boston, 102 Mass. 19
Brockton v. Uxbridge, 138 Mass. 292
Bronson v. Shulten, 104 U. S. 410
Brooks V. West Springfield, 193 Mass.
190
Brown v. Commonwealth, 100 Ky. 127 652
V. Lowell, 8 Met. 172 . . 745
V. Lynch, 2 Bradf. (N. Y.) 214 . 467
V. Russell, 166 Mass. 14 . 45, 707
Browne v. Turner, 174 Mass. 150 . 584
Brushabcr v. Union Pacific R. R. Co.,
240 U. S. 1
Buchanan v. Warley, 245 U. S. 60
Buchman v. State, 59 Ind. 1
Buckeye Pipe Line Co. v. Fee, 62 Ohio
St. 543
Burdett v. Walsh, 235 Mass. 153
Burdick v. People, 149 111. 600 .
Burgess v. Mayor and Aldermen of
Brockton, 235 Mass. 95
Burke v. Board of Health, 219 Mass.
219
Burnett v. Freeman, 125 Mo. App. 683 328
Burr V. The First Parish in Sandwich,
9 Mass. 277 ....
Burrage v. County of Bristol, 210
Mas.s. 299
Butchers Slaughtering, etc., Assn. v.
Boston, 21'4 Mass. 254 .
Butler V. Attorney-General, 195 Mass.
79
V. Martin, 220 Mass. 224 .
C. A. Weed & Co. v. Lockwood, 266
Fed. 785
V. Lockwood, 264 Fed. Rep. 453
Callanan v. Hurley, 93 U. S. 387
Cambridge v. County Commissioners,
114 Mass. 337 . . . 180, 574
Cambridge Savings Bank v. Clerk of
Courts, 243 Mass. 424 .
Canton Institution for Savings v. Mur-
phy, 156 Mass. 305 .. .
Capen v. Foster, 12 Pick. 485, 488
Carey-Lombard Lumber Co. v. Bier-
bauer, 76 Minn. 434
95
334
327
727
568
619
136
239
152
601
78
264
80
141
249
645
706
568
635
715
CASES CITED.
XIX
PAGE
Carnig v. Carr, 167 Mass. 544 . . 708
Carr v. Riley, 198 Mass. 70 .511
Gary Library v. Bliss, 151 Mass. 364 13, 65
Case of Seven Bishops, 3 Mod. 212 . 633
Cathaway v. Bowles, 136 Mass. 54 . 102
Central Bridge Corp. v. Lowell, 4 Gray,
474 13
Central Shade Roller Go. v. Gushman,
143 Mass. 3.53 . . . .142
Chaffers v. Goldsniid, 1894, 1 Q.B. 186 634
Chapel of the Good Shepherd v. Bos-
ton, 120 Mass. 212 . .179
Chapin v. Lowell, 194 Ma.ss. 486 373, 600
Charlesbank Homes v. Boston, 218
Mass. 14 179
Charleston v. Allen, 6 Vt. 633 . .152
Chase v. Chase, 191 Mass. 166 . . 729
Chase v. Sutton Mfg. Co., 4 Gush. 152 64
Cheshire v. County Gommis.sioi^ers,
118Ma.ss. 386 .... 545
Chicago Life Ins. Go. v. Needles, 113
U. S. 574 IS
Chicago Mutual Life Ind. Assn. v.
Hunt, 127 111. 257 ... 242
Cincinnati Volksblatt Go. v. Hoffnieis-
ter, 62 Ohio St. 189 . . . 80
GivU Rights Cases, 109 U. S. 3 . . 353
Claflin V. United States Credit System
Co., 165 Mass. 501 .. . 5.36
Clark V. Gill, 1 Kay & J. 19 (Eng.) . 327
Cleaveland v. Norton, 6 Gush. 380 . 267
Clemens Electrical Mfg. Go. v. Walton,
168 Mass. 304 ... . 288
Cleveland, etc., Ry. Go. v. People, 212
111. 638 706
Godman v. Crocker, 203 Mass. 146 . 416
Goe V. Errol, 116 U. S. 517 . . 5.38
Coffey V. Gamble, 117 Iowa, 545 . 727
Cole V. Tucker, 164 Ma.ss. 486 . 352, 622
Commercial Fire Ins. Go. v. Board of
Revenue, Montgomery CJo., 99 Ala. 1 2
Commissioner of the Public Works v.
Justice, Dorchester District, 228
Mass. 12 .... . 725
Commissioners of W^ashington Park,
56 N. Y. 144 ... . 640
Commonwealth v. Adams, 114 Mass.
323 106
V. AJger, 7 Gush. 53 . . 14, 51,
110, 165, 266, 637
V. Anselvich, 186 Mass. 376 . 61
V. Atlas, 244 Mass. 78 . 452, 514
640
333
31
298
396
234
346
266
652
165
237
252
608
676
361
300
147
PAGE
Commonwealth v. Boston Advertising
Co., 188 Mass. 348 .. .
II. Boston & Maine R. R., 222
Mass. 206
V. Boston & Northern St. Ry. Co.,
212 Mass. 82 ... .
V. Brooks, 109 Mass. 355 .
V. Brown, 167 Mass. 144 . 192, 286
V. Carpenter, 100 Mass. 204 .61
V. Garter, 132 Mass. 12
V. Clary, 8 Mass. 72 .
V. Connecticut Valley St. Ry. Co.,
196 Mass. 309 ... .
V. Coupe, 128 Mass. 63
- V. Daley, 4 Gray, 209
V. Danziger, 176 Mass. 290
V. Davis, 140 Mass. 485
V. Dee, 222 Mass. 184
V. FoUett, 164 Ma.ss. 477 .
V. Gage, 114 Mass. 328
V. Gorham, 99 Mass. 420 .
?;. Hamilton Mfg. Co., 12 Allen,
298
V. Hamilton Mfg. Co., 120 Mass.
383
V. Hana, 195 Mass. 262 . 166, 171,
312, 334, 596
V. Harris, 231 Mass. 584 . . 83
V. Hawkins, 157 Mass. 551 . 106
V. Interstate, etc., St. Ry. Co.,
187 Mass. 436 . . 31, 334, 352
V. Jacobson, 183 Ma.ss. 242 . 372
V. Kcary, 198 Pa. 500 . . 019
V. Kiley, 150 Mass. 325 . . 361
V. Kozlowsky, 238 Ma.ss. 379 . 49
V. Lahy, 8 Gray, 4.59 . . 61
V. Libbey, 216 Mass. 356 . 352, 737
V. Lockwood, 109 Mass. 323 . 361
V. McCarthy, 225 Mass. 192 452, 514
V. McDcrmott, 224 Penn. 363 . 652
V. McGann, 213 Mass. 213 . 453
V. McMonaglc, 1 Mass. 517 . 462
V. Maletsky, 203 Mass. 241 452, 514
V. Maloney, 145 Mass. 205 . 515
V. Marshall, 11 Pick. 350 . . 321
V. Mathews, 122 Mass. 60 . 676
V. Moore, 214 Mass. 19 . . 395
V. Morrison, 197 Mass. 199 . 676
V. Mott, 21 Pick. 492 . . 652
V. Mulhall, 162 Mass. 496 . . 298
— — V. New England College of Chiro-
practic, 221 Mass. 190 . . 57, 158
XX
CASES CITED.
PAGE
Commonwealth v. New England Slate
& Tile Co., 13 Allen, 391 . . 303
V. N. Y. C. & H. R. R. Co., 206
Mass. 417 . . . . 374, 600
V. Newhall, 205 Mass. 344 . 298
V. Nickerson, 236 Mass. 281 373, 600
V. North Shore Ice Delivery Co.,
220 Mass. 55 ... . 143
V. Ober, 12 Cush. 493 . . 312
V. Packard, 185 Mass. 64 . . 294
V. Page, 155 Mass. 227 . . 676
V. Parker, 2 Pick. 550 . 119, 322
V. People's Five Cents Savings
Bank, 5 Allen, 428 .. . 133
V. Peters, 2 Mass. 125 . . 14
V. Plaisted, 148 Ma.s.s. 375 . 622
V. Porn, 196 Mass. 326 . . 166
V. Porter, 1 Gray, 476 . Ill, 635
V. Reid, 175 Mass. 202 . 312, 652
V. Riley, 210 Mass. 387 . 147, 682
V. Rogers, 181 Mass. 184 . 352, 622
V. Roswell, 173 Mass. 119 . . 165
V. Roxbiiry, 9 Gray, 451 . . 263
V. Slocum, 230 Mass. 180 . 136, 453
V. Smith, 141 Mass. 135 . 183, 396
V. Stevens, 155 Mass. 291 . . 35
V. Stodder, 2 Cush. 562 . . 676
V. Strauss, 191 Mass. 545 143, 165, 352
V. Tiffany, 119 Mass. 300 . . 263
V. Titcomb, 229 Mass. 14 . 137, 141,
166, 334, 352
V. Tufts, 239 Mass. 458, 537 . 517
V. Wetherbee, 105 Mass. 149 . 568
V. Wheeler, 205 Mass. 384 . 395
V. Williams, 6 Gray, 1 . .61
V. Wilson, 14 Phila. 384 . . 619
Conant v. Burnham, 133 Mass. 503 . 249
Conners v. Lowell, 246 Mass. 279 . 514
Connolly v. Union Sewer Pipe Co., 184
U. S. 540 . . . 137, 140, 334
Cooley V. Cook, 125 Mass. 406 . . 722
V. O'Connor, 12 Wall. 391 . 416
Coolidge V. Learned, 8 Pick. 504 . 265
Copeland v. Mayor and Aldermen of
Springfield, 166 Mass. 498 . . 745
Coppage V. Kansas, 236 U. S. 1 . 333
Corey v. Wrentham, 164 Mass. 18 . 640
Cornish's Trial, 11 How. St. Tr. 460
(1685) ..... 82
Cotting V. Commonwealth, 205 Mass.
523 . . . . 465, 674, 751
Cotting V. Kansas City Stock Yards
Co., 183 U. S. 79 . . . . 335
County Com. v. Lee, 3 Colo. App. 177 328
Cowell V. Thayer, 5 Met. 253 . . 282
Crane v. New York, 239 U. S. 195 . 334
Crocker v. Justices of the Superior
Court, 208 Mass. 162 . . . 121
Cross V. Bouck, 175 Cal. 253 . . 465
Crusoe v. Bugby, 3 Wills. 234 . . 465
Curry v. Spencer, 61 N. H. 624 . 136
Curtis V. New York Life Ins. Co., 217
Mass. 47 ... . 486, 716
Dallemagne v. Moisan, 197 U. S. 169 508
Daniel v. Hill, 52 Ala. 430 . . 468
Davis V. Caldwell, 12 Cush. 512, 513 . 249
V. Colburn, 128 Mass. 377 . 102
V. Rockport, 213 Mass. 279 . 65
Dearborn v. Ames, 8 Gray, 1 . 49, 189
Dedham,w. Natick, 16 Mass. 135
Deerficld v. Connecticut River R. R.,
144 Mass. 325 ... .
Delaney v. Grand Lodge A. O. U. W.,
244 Mass. 556 ... .
Delaware, L. & W. R. Co. v. Petrowsky,
250 Fed. 554 ... .
Den V. Post, 25 N. J. L. 285
Denver & R. G. R. R. Co. v. Denver,
250 U. S. 241
Derinza's Case, 229 Mass. 435 .
Devoe v. Commonwealth, 3 Met. 316 .
Dewey v. Richardson, 206 Mass. 430
136, 165
Dickey v. Trustees of Putnam Free
School, 197 Mass. 468 .
Dills V. State, 59 Ind. 15 .
Dinan v. Swig, 223 Mass. 516 .
Dingley v. Boston, 100 Mass. 544
Dixon V. People, 168 111. 179
V. The State, 12 Ga. App. 17
Dobbins v. Los Angeles, 195 U. S. 223
Donovan v. Board of Labor and In-
dustries, 225 Mass. 410
V. Haverhill, 247 Mass. 69
467
265
243
469
465
336
524
359
502
327
123
64
328
328
14
704
.304
V. Pennsylvania Co., 199 U. S. 279 677
Dorscy v. Brigham, 177 111. 250
Douglas V. Noble, 261 U. S. 165
Downey v. Bay State St. Ry., 225
Mass. 281
Drew V. Thaw, 235 U. S. 432 .
Driiry v. Inhabitants of Natick, 10
.-Ulen, 169
Duddy's Case, 219 Mass. 548 .
701
443
715
611
575
105
CASES CITED.
XXI
658
13
547
639
PAGE
Duffy & Cooke, 239 Pa. St. 427 . 737
Duffy V. Treasurer and Receiver Gen-
eral, 234 Mass. 42 . . .110
Duggan V. Bay State Street Ry. Co.,
230 Mass. 370 . . 61, 147, 252
Dunn V. Lowe, 203 Mass. 516 . 182, 397
Dunwoody v. United States, 22 Ct.
Claims, 269
Durfee v. Old Colony, etc., R. R. Co.,
5 Allen, 230 ....
Durgin v. Minot, 203 Mass. 26 .
Eastern R. R. Co. v. Boston & Maine
R. R., Ill Mass. 125 .
Eaton, Crane & Pike Co. v. Common-
wealth, 237 Mass. 523 .
Edwards v. Bruorton, 184 Mass. 529 .
Electric Welding Co. v. Prince, 195
Mass. 242 . . . . 374, 600
Elliott V. Stone, 1 Gray, 571 . . 539
Ellis V. Anderson, 49 Pa. Sup. Ct. 245 491
Ellsworth V. Dorwart, 95 la. 108 . 80
Emerson v. Trustees of Milton Acade-
my, 185 Mass. 414 . . 179, 574
Emery v. Emer>% 218 Mass. 227 . 701
Emmons v. Shaw, 171 Mass. 410 . 498
Engel V. O'MaUey, 219 U. S. 128 . 105
Equitable Life Assurance Society v.
Clements, 140 U. S. 226 . . 607
Ex parte Bartlett, 4 Bradf. (N. Y.) 221 468
Dement, 53 Ala. 389 . . 328
Hughes, 50 Tex. Cr. R. 614 . 619
Reggel, 114 U. S. 642 . . 105
Siebold, 100 U. S. 371 . . 232
Spencer, 228 U. S. 652 . 192, 286
Farr Alpaca Co. v. Commonwealth,
212 Mass. 156 .
Fay V. Salem & Danvers Aqueduct Co.,
Ill Mass. 27 ... .
Field V. Mills, 33 N. J. L. 254 .
Finley v. Mexican Inv. Corp., 1897,
1 Q.B. 517
Firemens Ins. Co. v. Commonwealth,
137 Mass. 80 ... .
First Parish in Sudbury v. Jones, 8
Cush. 184
First Universalist Society in Salem v.
Bradford, 185 Mass. 310
Fitzgerald v. Arel, 63 la. 104 .
V. Lewis, 164 Mass. 495
Flinn v. Prairie County, 60 Ark. 204 .
Flynn v. Allen (1865), 26 Phila. Leg.
Int. 37 196
303
266
466
534
303
306
574
343
734
328
PAGE
Foley V. HiU, 2 H. L. Cas. 28 . . 101
Forster v. Scott, 136 N. Y. 577 . . 639
Foss V. Wexler, 242 Mass. 277 . 453, 713
Foster v. Park Commissioners, 133
Mass. 321 406
V. White, 86 Ala. 467 . . 79
Fort Leavenworth R. R. Co. v. Lowe,
114 U. S. 525 . . . . 233
Freetown v. Taunton, 16 Mass. 52 . 467
French v. Conn. River Lumber Co.,
145 Mass. 261 ... . 677
French v. Sangerville, 55 Me. 69 195, 255
Friend v. Gilbert, 108 Mass. 408 . 70
Fry V. State, 63 Ind. 552 . . .619
Fuller V. Mayor of Medford, 224 Mass.
176 Ill
Gage V. Steinkrauss, 131 Mass. 222 . 264
Gagnon v. United States, 193 U. S. 451 383
Gardner Water Co. v. Gardner, 185
Mass. 190 266
Garrison v. New York, 21 Wall. 196 . 640
General Baking Co. v. Street Commis-
sioners, 242 Mass. 194 . . .451
Gero V. Metropolitan Park Commis-
sion, 232 Mass. 389 .. . 260
Gibbs V. Estey, 15 Gray, 587 . . 306
Gilbert John Bannister v. Soldiers'
Bonus Board, 43 R. I. 346 . . 197
Glass V. State Board of Public Roads,
44 R. I. 54 662
Gleason v. McKay, 134 Mass. 419 . 92,
134, 550
Goldstein v. Conner, 212 Mass. 57 452, 514
Gordon v. Chief of Police of Cam-
bridge, 244 Mass. 491 . . . 699
GouHs V. Judge of District Court, 246
Mass. 1 508
Graham v. Roberts, 200 Mass. 152 . 45,
123, 622
V. West Virginia, 224 U. S. 616 . 652
Great Barrington v. Gibbons, 199
Mass. 527 . . . . 374, 600
Greenfield Savings Bank v. Common-
wealth, 211 Mass. 207 . . .4
Greenway v. Adams, 12 Ves. Jr. 395 . 406
Gregg V. Jamison (1867), 55 Pa. 468 . 196
Greves v. Shaw, 173 Mass. 205 . . 5.50
Griggs V. Moors, 168 Mass. 354 . 41
Grunmett v. State, 22 Tex. App. 36 . 84
Hale V. Everett, 53 N. H. 9 . . 152
Hall V. Geiger Jones Co., 242 U. S. 539
165, 334
XXll
CASES CITED.
PAGE
Hamilton v. Lane, 138 Mass. 358 . 249
Hammond v. Hyde Park, 195 Mass. 29
373, 600
Hargrave v. King, 40 N. C. 430 . 465
Hartford Fire Ins. Co. v. Becton &
Terrell, 103 Tex. 236; 125 S. W. 883 325
Harvard College v. Cambridge, 175
Mass. 145 574
V. Gore, 5 Pick. 370 . . .701
Hawke V. Smith, No. 1, 253 U. S. 221 446
No. 2, 253 U. S. 231 . . 446
Hayden v. Stone, 112 Mass. 346 . 266
Heim V. McCall, 239 U. S. 175 . . 3.34
Hendrick v. Maryland, 235 U. S. 610 136
Henry v. Babcock & Wilcox Co., 196
N. Y. 302 SO
Higginson v. Treasurer & School House
Commissioners of Boston, 212 Mass.
583 64
Hill V. Treasurer and Receiver General,
229 Mass. 474 ... . 498
Hittinger v. Eames, 121 Mass. 539 . 264
V. Westford, 135 Mass. 258 . 462
Hodgdon v. Haverhill, 193 Mass. 406 6
Hogan 1'. O'Neil, 255 U. S. 52 . .611
Holmes v. Hunt, 122 Mass. 505, 517 . 61
Holy Trinity Church v. United States,
143 U. S. 457 . . . . 365
Holyoke v. Haskins, 5 Pick. 20 . . 468
Houle V. Abramson, 210 Mass. 83 . 421
Howard v. Fessenden, 14 Allen, 124 . 306
Howland v. Parker, 200 Mass. 204 . 99
Hub Construction Co. x. New England
Breeders' Club, 74 N. H. 282 . 80
Hull V. Boston & Maine R. R., 210
Mass. 159 355
Hunt V. Bay State Iron Co., 97 Mass.
279 306
Huyser v. Commonwealth, 25 Ky. Law
Rep. 608 652
Hyatt V. Blackwell Lumber Co., 31
Ida. 452 670
Hyatt V. Corkran, 188 U. S. 691 . 104
Hylton V. United States, 3 Dall. 171 . 95
In re Beaumont (1893), 3 Ch. 190, 490 467
Brannock, 131 Fed. 819 . . 343
Grimlcy, 137 U. S. 147 . . 557
Law Guarantee See. v. Munich
Re-Ins. Co. (1912), 1 Ch. 138 . 535
Neagle, 135 U. S. 1 . . . 233
Turner, 119 Fed. Rep. 231 . 233
PAGE
International Harvester Co. v. Mis-
.souri, 234 U. S. 199 . 137, 141, 334
International Textbook Co. v. Gilles-
pie, 229 Mo. 397 . . . . 159
V. Lynch, 81 Vt. 101 . . 159
V. Pigg, 217 U. S. 91 55, 158, 159
V. Peterson, 133 Wis. 302 . . 159
V. Connelly, 124 N. Y. Supp. 603 159
V. Connolly, 206 N. Y. 188 . 249
Jackson v. Harrison, 17 Johns (N. Y.)
66 465
V. PhUlips, 14 Allen, 539 . . 574
V. Silvernail, 15 Johns (N. Y.) 278 465
Jacobson v. Massachu.setts, 197 U. S.
11 372
James Sulhvan v. Wilheim Kanuth, 220
N. Y. 216 319
Jaquith v. Wellesley, 171 Mass. 138 . 352
Jenkins v. Andover, 103 Mass. 94 . 500
Jennings v. Davis, 31 Conn. 134 . 41
Johnson v. Copeland, 35 Ala. 521 . 467
V. Langdon, 135 Cal. 624 . . 80
Jones V. Robbins, 8 Gray, 329 . . 83
Jordan Marsh Co. v. Cohen, 242 Mass.
245 249
Judson Freight Forwarding Co. v.
Commonwealth, 242 Mass. 47 . 565
Kane v. New Jersey, 242 U. S. 160 88, 136
V. Titus, 81 N. J. L. 594 . . 136
Karrick v. Wetmore, 210 Mass. 578 . 727
Keith V. Maguire, 170 Mass. 210 . 714
Kelly D. Biddle, 180 Mass. 147 . .118
Kentucky v. Dennison, 24 How. 66 .611
Kibbe v. Antram, 4 Conn. 134, 139 . 152
Kilgour V. Gratto, 224 Mass. 78 452, 514
Kimball v. Dern, 39 Utah, 181 . . 80
King V. Norcross, 196 Mass. 373 . 677
V. Viscoloid Co., 219 Mass. 420 . 309
Kingman v. Brockton, 153 Mass. 255
70, 642
. 412
. 412
. 45
Rep.
. 652
468
, petitioner, 153 Mass. 566
, 170 Mass. Ill
Kinncen v. Wells, 144 Mass. 497
Kinney v. State, 45 Tex. Crim.
500
Kirkland v. Whately, 4 Allen, 462
Kirkman v. McCMaughry, 152 Fed. 255 505
Kite V. Commonwealth, 11 Met. 581 . 505
Kittingcr b. Rossman, 12 Del. Ch. 276 639
Knight V. Boston, 159 Ma,ss. 551 . 41
Knox«. Coburn, 117 Me. 409 . . 80
Kohl V. United States, 91 U. S. 367 , 12
CASES CITED.
XXlll
Krakauer v. Chapman, 16 App. Div.
115 318
Lafayette Ins. Co. v. French, 18 How.
404 89
Lake Shore & Michigan Southern Ry.
V. Chicago & Western Indiana R. R.,
97 111. 506 13
Lamar v. Micou, 112 U. S. 452 . . 467
LasceUes v. Georgia, 148 U. S. 537 . 010
Lawrence v. Board of Registration, 239
Mass. 424 737
V. Fletcher, 8 Met. 153 . . 152
Lawton v. Steele, 152 U. S. 133 165, 352
Leahy v. Street Commissioners, 209
Mass. 316 406
Lee V. Boston, 2 Gray, 484 . . 701
V. Lynn, 223 Mass. 109 . 334, 570
V. Marsh, 2.30 Penn. 351 . . 372
Leggett V. Levy, 233 Mo. 590 . .318
Leser v. Garnett, 258 U. S. 130 . . 446
Lewis V. Brainerd, 53 Vt. 519 . . 80
Lexington v. Suburban Land Co., 235
Mass. 108 . . . 640, 677
Lithwines Trial, 4 How. St. Tr. 1269,
1273 82
Little V. Newburyport, 210 Mass. 414 575
Loan Assoc, v. Topeka, 20 Wall. 655 . 76,
643
Lochner v. New York, 198 U. S. 45 166, 333
Logan V. Mayor and Aldermen of Law-
rence, 201 Mass. 506 . . 697
Londonderry v. Chester, 2 N. H. 268 . 152
Long Island Water Supply Co. v.
Brooklyn, 166 U. S. 685
Long V. State, 36 Tex. 6 .
Lord V. Goldberg, 81 Cal. 596 .
Loring v. Young, 239 Mass. 349
Lowe V. Jones, 192 Mass. 94
Lowell V. Boston, 111 Mass. 454
. 12
. 652
. 708
. 382
. 101
67, 70,
76, 642
Lowell, etc.. Appellants, 22 Pick. 215 . 575
Lunt V. Davison, 104 Mass. 498 . 390
Lynn Workingmen's Aid Association
V. Lynn, 136 Mass. 283 . . 578
Lynnfield v. Peabody, 219 Mass. 322 266,
608
Madigan v. McCarthy, 108 Mass. 376 306
Mahoney v. Boston, 171 Mass. 427 . 40
V. Lincolnville, 56 Me. 450 195, 255
Main v. County of Plymouth, 223
Mass. 66 ... . 524, 641
Main v. Sherman Co., 74 Neb. 155 . 328
PAGE
Mander v. Coleman, 95 N. Y. Sup. 696 658
Marble v. Treasurer and Receiver Gen-
eral, 245 Mass. 504 .. .
Marcy v. Marcy, 9 Allen, 8
Marks v. Wentworth, 199 Mass. 44 .
Martin v. Gardner, 240 Mass. 350
Martin L. Hall Co. v. Commonwealth,
215 Mass. 326 .
Martin v. Waddell, 16 Pet. 367 .
Mason v. Pearson, 118 Mass. 61
Massachusetts General Hospital v.
Belmont, 233 Mass. 190
Massachusetts Institute of Technology,
188 MaiBs. 565 ... .
Mass. Society, etc. v. Boston, 142 Ma.ss.
24
Mathews v. Kimball, 70 Ark. 451
Mayor of Medford v. Judge of District
Court, 249 Mass. 465 .
Mayor, etc., of New York v. Sands,
105 N. Y. 210 .
McAuUffe V. New Bedford, 155 Mass.
216
McCaffrey v. Smith, 41 Hun. (N. Y.)
117
McCarter, Atty. Gen., v. Dungan, 74
N. J. Eq. 251 . . . .6
McCray v. United States, 195 U. S. 27 134
McCullough V. McCullough, 44 N. J.
Eq. 313
McDonald v. Fire Engineers of (Uin
ton, 242 Mass. 587 .. .
McGee v. Salem, 149 Mass. 238, 240 .
McKeon v. New England R. R. Co.
199 Mass. 292 ... .
McLean v. Arkansas, 211 U. S. 539 .
388
741
515
343
734
267
727
334
510
574
359
699
674
736
677
101
38
306
McNichols V. Pease, 207 U. S. 100
Mead v. Acton, 139 Mass. 341
186
165,
335
105,
211, 612
70,
110, 642
467
282
Mears v. Sinclair, 1 W. Va. 185
Mendell v. Delano, 7 Met. 176 .
MercantDe Bank v. New York, 121
U. S. 138 549
V. Richmond, 256 U. S. 635 . 549
Merritt v. United States, 264 Fed. 870 249
Metropolitan Life Ins. Co. v. Insurance
Commissioner, 220 Mass. 52 . . 486
V. Insurance Commis.sioner, 208
Mass. 386 486
XXIV
CASES CITED.
PAGE
Meyer v. Estes, 164 Mass. 457 . . 142
Michael v. Michael, 34 Tex. Civil App.
6.30
34.3
306
332
408
57.5
498
388
652
Milligan v. Drury, 130 Mass. 428
Minneapolis v. Minneapolis St. Ry
Co., 215 U. S. 417
Minnesota v. Barber, 136 U. S. 313
Minns V. Billings, 183 Mass. 126, 131
Minot V. Paine, 230 Mass. 514 .
V. Treasurer and Receiver Gen-
eral, 207 Mass. .588 . . 99, 498
V. Winthrop, 162 Mass. 113 . 1.34
Mitchell V. Tibbetts, 17 Pick. 298 . 233
Moale V. Baltimore, 5 Md. 314 . . 639
Molly Varnum Chap. D. A. R. v. Low-
ell, 204 Mass. 487 ... 574
Moore v. Sanford, 151 Mass. 285 67, 616
V. Stoddard, 206 Mass. 395 252, 583
Moors V. Treasurer and Receiver Gen-
eral, 237 Mass. 254 .. .
Morgan v. Commonwealth, 170 Ky
400
Moulton v. Commissioner of Corpora-
tions and Taxation, 243 Mass. 129 . 299
Mount Hermon Boys' School v. Gill,
145 Mass. 139 . . . 179, 574
Munkley v. Hoyt, 179 Mass. 108 . 361
Munroe o. Woburn, 220 Mass. 116 . 641
Murphy o. Mayor of Boston, 220 Mass.
73
Murray v. Cherrington, 99 Mass. 229
Mutual Benefit Life Ins. Co. v. Com-
monwealth, 227 Mass. 63
Nelson v. First National Bank, 69 Fed
798
V. Milford, 7 Pick. 18
New Bedford v. County Commissioners,
9 Gray, 346 .... 640
New England Hospital v. Boston, 113
Mass. 518 .....
New England, etc., S. S. Co. v. Com-
monwealth, 195 Mass. 385
New England Theosophical Corpora-
tion V. Boston, 172 Mass. 60 . . 575
New Orleans Gas Co. v. Drainage
Commission, 197 U. S. 453 . 14, 3.36
V. Louisiana Light Co., 115 U. S.
6.50 14, 332
New York Bank Note Co. v. Kidder
Press Mfg. Co., 192 Ma.ss. 391 . 142
New York Life Ins. Co. ». Dodge, 246
U. S. 357 670
706
538
717
739
70
577
300
PAGE
New York Life Ins. Co. v. Hardison,
199 Mass. 190 . . . 485, 691
New York & New England R. R. Co.
V. Bristol, 151 U. S. 556 . 14, 332
Newcomb & Rockport, 183 Mass. 76 . 232
Northern Assurance Co. v. Meyer, 194
Mich. 371 491
Northern Pacific Ry. Co. v. Douglas
County, 145 Wis. 288 . . . 359
V. Duluth, 208 U. S. 583 . 14, 336
Norton v. Shore Line Electric Ry. Co.,
84 Conn. 24 .... 452
Norwich v. County Commissioners, 13
Pick. 60 412
Noyes v. Gushing, 209 Mass. 123 . 511
O'Day V. Crabb, 269 111. 123 . . 328
Ohio V. Thomas, 173 U. S. 276 . . 232
O'Keefe v. Somerville, 190 Mass. 110 134,
550
Old Colony R. R. Co. v. Framingham
Water Co., 153 Mass. 561 . . 13
Oliver v. Ohver, 169 Mass. 592, 593 192,
286
V. Washington Mills, 11 Allen, 268
92, 545
OUila V. Huikari, 237 Mass. 54 . . 524
Opinion of the Justices, 120 Atl. 629 . 136
21 R. I. .579 .
. 623
6 Gush. 573 .
. 378, 385
107 Mass.
604 .
46, 107, 127, 580
122 Mass.
600 .
377, 595, 709
126 Mass.
557 .
. 595
148 Mass.
623 .
. 595
150 Mass.
586 .
. 582
155 Mass.
598 .
. 642
160 Mass.
586 .
. 45
165 Mass.
599 .
45, 107, 582
175 Mass.
599 .
. 77
186 Mass.
603 .
. 595
190 Mass.
611 .
. 76, 595
190 Mass.
616 .
. 624
195 Mass.
607 .
. 92, 545
196 Mass.
603 .
. 93, 134
204 Mass.
607 .
67, 70
207 Mass.
601 .
. 33, 570
208 Mass.
603 .
. 185, 677
208 Mass.
614 .
. 595
208 Mass.
616 .
.92
208 Mass.
619 .
. 333
208 Mass.
625 .
. 186
210 Mass.
609 .
. 626
211 Mass.
60S .
. 76
CASES CITED.
XXV
PAGE
Opinion of the .Justices, 211 Mass. 624
70, 643
211 Mass. 630 .
211 Mass. 632 .
214 Mass. 602 .
217 Mass. 607, 611 .
220 Mass. 613 .
. 595
. 625
. 595, 626
. 595
92, 613
. 166, 333
. 377
19, 366
. 83
. 382
. 412, 640
. 123, 170
51, 108, 351, 582
. 45
. 565, 619
Owens-
220 Mass. 627 .
226 Mass. 607 .
231 Mass. 603 .
232 Mass. 601 .
233 Mass. 603 .
234 Mass. 597 .
239 Mass. 606 .
240 Mass. 601 .
240 Mass. 611 .
247 Mass. 589 .
Owensboro National Bank v
boro, 173 U. S. 664 .. . 548
Pa. Co. for Insurance v. Philadelphia,
262 Pa. 439 328
Pace V. Alabama, 106 U. S. 583 . 353
Palmer v. Hampden, 182 Mass. 511 . 342
Parker v. Baxter, 2 Gray, 185, 189 . 304
Parkhurst v. Ginn, 228 Mass. 159 . 101
Parkinson v. West End St. Ry. Co., 173
Mass. 446 19
Patapsco Guano v. North Carolina,
171 U. S. 345 . . . . 407
Peabody v. Boston & Providence R. R.
Corpn., 181 Mass. 76 . . . 186
Pedan v. Robb's Adni'r, 8 Ohio, 227 . 468
Penn. College Ca.ses, 13 Wall., 190 . 18
Pcnn. Hospital v. Philadelphia, 245
U. S. 20 12
Pennsylvania Co. v. Chicago, 181 III.
289 677
People V. Brady, 275 111. 261 . . 708
V. Butler, 3 Cowcn (N. Y.) 347 652
V. Compagnie Generale Trans-
atlantique, 107 U. S. 59 . . 395
V. Conte, 17 Cal. App. 771 . 328
V. Elkus, 59 Cal. App. 396 . 623
V. Hall, 51 N. Y. App. 57 . .84
•S. Kerrigan, 73 Cal. 222 . .84
V. Mercantile Credit Co., 166
N. Y. 416 535
V. Montgomery, 13 Abb. Pr. Rep.
(N. S.) 207 328
V. Murray, 89 Mich. 276 . . 84
V. Potts, 264 111. 522 . . 534
V. Priest, 206 N. Y. 274 . . 639
People V. Rose. 174 111. 310
V. Squire, 107 N. Y. 593 .
V. Steele, 231 111. 340
V. Swafford, 65 Cal. 223 .
ex rel. Thompson v. Brookfield,
6 App. Div. (N. Y.) 398
V. VUIage of Yonkcrs, 39 Barb.
(N. Y.) 266
V. Warden of Prison, 157 N. Y.
116
V. Weller, 237 N. Y. 316 .
V. Wells, 2 Cal. 198 .
V. Yeager, 113 Mich. 228 .
Perkins v. Westwood, 226 Mass. 268
PAGE
534
14
619
84
678
658
619
443
706
84
352,
545, 617
Phi Beta Epsilon Corporation v. Bos-
ton, 182 Mass. 457 .. . 575
Philler v. AVaukesha Co., 139 Wis. 211 328
Phillips V. Boston, 150 Mass. 491 .40
Phillips Academy v. Andover, 175
Mass. 118 . . . . 179, 574
Phinney v. Foster, 189 Mass. 182 . 306
Physicians' Defense Co. ». O'Brien, 100
Minn. 490 553
Physicians' Defense v. Cooper, 199 Fed.
576 553, 570
Pierce v. Boston Five Cents Savings
Bank, 125 Mass. 593 . . . 726
V. Gould, 143 Mass. 234 . . 452
V. Lamper, 141 Mass. 20 . . 727
Pittsburg & Southern Coal Co. v. Lou-
isiana, 156 U. S. 590 . . 396
Plessy V. Fergu.son, 163 U. S. 537 . 353
Plumley v. Massachusetts, 155 U. S.
461 407
Pollock V. Farmers' Loan & Trust Co.,
157 U. S. 429, 570; 158 U. S. 601,
623 95
Pond V. Negus, 3 Mass. 230 . . 288
Portland Bank v. Apthorp, 12 Mass.
252 . . . . 92, 133, 545
Potinger v. Wightman, 3 Meriv. 67 . 467
Powers V. Sturtevant, 200 Mass. 519 . 727
Pratt V. Burdon, 168 Mass. 596 . 477
V. Tuttle, 136 Mass. 233 . . 101
Prentice v. Richards, 8 Gray, 226 . 249
Prudential Ins. Co. v. Cheek, 259 U. S.
530 335
Putnam v. Johnson, 10 Mass. 488 . 701
Radclyffe v. Barton, 154 Mass. 157 . 727
RaUroad Co. v. Huscn, 95 U. S. 465 . 408
V. Richmond. 96 U. S. 521 . 334
XXVI
CASES CITED.
PAGE
Raiid v. Coninionwcalth, 9 Gratt,. (Va.)
738 052
Ilayiner v. Tax Coninii.ssionor, 239
Mass. 410 725
Rayncs v. Bennett, 114 Mass. 424 . 249
Rea V. Aldermen of Everett, 217 Mass.
427 289
Reagan v. Union Mutual Life Ins. Co.,
189 Mass. 555 . . . .692
Redemptorist Fathers v. Boston, 129
Mass. 178 577
Reed v. Sharon (1868), 35 Conn. 191 . 195,
255
Reformed Dutch Church v. Bradford,
8 Cowen, 457 ... . 152
Reid V. Colorado, 187 U. S. 137 . 408
Rcutener v. Cleveland, 107 Ohio St.
117 623
Revere v. Boston Copper Co., 15 Pick.
351 5
Richardson v. Essex Institute, 208
Mass. 311 ..... 574
Rippucci V. Commonwealth Construc-
tion Co., 190 Mass. 518 . . 493
Robbins v. Borman, 1 Pick. 122 . 677
Roberts v. Hawkins, 70 Mich. 566 . 568
Robertson v. Baldwin, 165 U. S. 275 . 508
Robinson's Case, 131 Mass. 376 . 48
Roby V. New York Central R. R., 142
N. Y. 176 282
Rockport V. Webster, 174 Mass. 385 . 266
Round V. Police Commissioner, 197
Mass. 218 9
Russell V. Failor, 1 Ohio St. 327 . 568
Russell V. Howe, 12 Gray, 147 . . 190
Rutter V. White, 204 Mass. 59 . . 288
Sackett v. Sanborn, 205 Mass. 110 . 400
St. Mary's Woolen Mfg. Co. v. Brad-
ford Co., 14 Ohio C. Ct. 522 . . 359
St. Paul's Church v. Attorney General,
164 Mass. 188 . . . . 575
Salem-Fairfield Telephone Assoc, v.
McMahon, 78 Ore. 477 . .118
Salem Lyceum v. Salem, 154 Mass. 15 179,
575
Salisbury Land & Improvement Co. v.
Commonwealth, 215 Mass. 371 12, 64,
110, 616
Samburg r;. American Express Co., 136
Mich. 639 319
Sands v. Old Colony Trust Co., 195
Mass. 575 99
Saranac Land & Timber Co. v. Comp-
troller of New York, 177 U. S. 318 . 644
Savage v. Jones, 225 U. S. 501 . . 407
V. Shaw, 195 Mass. 571 . . 374,
524, 600
School Directors v. James, 2 Watts. &
S. 568 467
School District No. 3 v. Western Tube
Co., 13 Wy. 304 . . . .658
Schreiber v. Chicago & Evanston R. R.
Co., 115 111. 340 . . . .640
Scituate v. Weymouth, 108 Mass. 128 412
Selectmen of Brookline, petitioners,
236 Mass. 260 . . . . 335
Selectmen of Natick v. Boston & Al-
bany R. R. Co., 210 Mass. 229 . 252
Settle V. Van Evrea. 49 N. Y. 280 . 706
Shattuck V. Burrage, 229 Ma.ss. 448 . 99
V. Love joy, 8 Gray, 204 . . 466
Shaw V. Royce (1911), 1 Ch. 138 . 535
Shawmut Commercial Paper Co. v.
Brigham, 211 Mass. 72 . . . 607
Shea V. Metropolitan Stock Exchange,
168 Mass. 282 ... . 607
V. Parker, 234 Mass. 592 . . 80
Sheldon v. Congregational Parish in
Easton, 24 Pick. 281 . . . 152
Shields v. Barrow, 17 How. 130, 144 . 383
Simplex Elec. Heating Co. v. Common-
wealth, 227 Mass. 225 . . . 300
Sklaroff v. Commonwealth, 236 Mass.
87 265
Slater v. Gunn, 170 Mass. 509 . . 264
Slater v. Taylor, 241 111. 102 . .2
Smith V. Bay State Savings Bank, 202
Mass. 482 . . . . .421
Smith V. Texas, 223 U. S. 630 . . 166
South Lancaster Academy v. Lancas-
ter, 242 Mass. 553 ... 574
Southern Pacific R. R. Co. v. San Fran-
cisco Savings Union, 146 Cal. 290 . 640
Sparhawk 2). Sparhawk, 116 Mass. 315 625
Spaulding v. Smith, 162 Mass. 543 . 359
Spofford V. Carleton, 238 Mass. 528 . 375
Sprague v. Minon, 195 Mass. 581 . 263
Springfield v. Springfield St. Ry. Co.,
182 Mass. 41 .... 29
Sproule V. Fredericks, 69 Miss. 898 . 385
State V. Bell, 212 Mo. Ill . .328
V. Brooks, 92 Mo. 542 . . 84
V. Carragan, 36 N. J. L. 52 . 639
CASES CITED.
XXVll
State V. Conn. Mut. Life Ins. Co., 106
Tenn. 282 670
V. Downes, 59 N. H. 320 . . 359
V. Ehrlick, 65 W. Va. 700 . . 49
V. Express Co., 60 N. H. 219 . 136
J'. Latham, 115 Me. 176 . . 168
V. Middlesex Banking Co., 87
Conn. 483 SO
V. Norwich & Worcester R. R.
Co., 30 Conn. 290 . . .2
V. Robinson, 101 Minn. 277 . 49
V. Smith, 153 La. 578 . . 708
V. Teipner, 36 Minn. 535 . . 328
V. Township 9, 7 Ohio St. 64 . 151
V. Turner, 34 Ore. 173 . . 392
Steamship Co. v. JoUffe, 2 Wall. 450 . 322
Stevens v. Commonwealth, 4 Met. 360 652
V. Worcester, 196 Mass. 45 . 328
Stevenson v. Donndly, 221 Mass. 161 722
Stone V. Charlestown, 114 Mass. 214 . 66
V. Farmer's Loan & Trust Co., 116
U. S. 307 332
V. Forbes, 189 Mass. 163 . . 99
V. Kellogg, 165 111. 192 . . SO
V. Old Colony St. Ry. Co., 212
Mass. 459 669
V. Penn Yan, etc., Ry., 197 N. Y.
279 670
V. Smith, 159 Mass. 413 . . 737
Stoughton V. Baker, 4 Mass. 522 . 51,
110, 637
V. Cambridge, 165 Mass. 251 . 342
Strassheim v. Daily, 221 U. S. 280 105, 611
Strouse v. American Credit Ins. Co.,
91 Md. 244 535
Suburban Light & Power Co. v. Bos-
ton, 153 Mass. 200 .. . 288
Sullivan ». Detroit, etc., Ry., 135 Mich.
661 708
Summers v. State, 5 Tex. App. 365 . 328
Supervisors of Election, 114 Mass. 247 706
Swan V. Justices of the Superior Court,
222 Mass. 542 ... . 725
Sweet V. Rechel, 159 U. S. 380 . . 65
Sweetser v. Emerson, 236 Fed. 161 . 373,
600
Taft V. Adams, 3 Gray, 126 . . 45
V. Lord, 92 Conn. 539 . . 106
Talbot V. Hudson, 16 Gray, 417 . 181
Tanner v. Little, 240 U. S. 369 . 334, 352
Tax Commissioner v. Putnam, 227
Mass. 522 547
Teasdale v. Newell & Snowling Con-
struction Co., 192 Ma.ss. 440 . . 661
Tennessee v. Davis, 100 U. S. 257 . 232
The Dublin Case, 38 N. H. 459, 543 . 152
Thayer Academy v. Assessors of Brain-
tree, 232 Mass. 402 .. . 574
Thayer v. Boston, 124 Mass. 132 . 701
V. Felt, 4 Pick. 354 . . . 722
The Penn, 273 Fed. 990 . . . 249
Thomas v. Municipal Council of Low-
ell, 227 Mass. 116 . . .699
Thornberg v. Allman, 8 Ind. App. 531 568
Thorp V. Lund, 227 Mass. 474, 482 . 575
Tilton V. Tilton, 196 Mass. 562 . 374, 600
Tipton V. Tipton, 87 Ky. 243 . . 343
Todd V. Sawyer, 147 Mass. 570 . 99
Toupin V. Peabody, 162 Mass. 473 373,
600
468
633
306
734
578
Townsend v. Kendall, 4 Minn. 412
Trial of the Seven Bishops, 12 How.
St. Trials, 183 ....
Trask v. Little, 182 Mass. 8
Tremont & Suffolk Mills v. Lowell, 165
Mass. 265
Trinity Church v. Boston, 118 Mass.
164
Truax v. Raich, 239 U. S. 33 . 333, 570
Trustees of Wesleyan Academy v. Wil-
braham, 99 Mass. 509 . . . 574
Tucker v. Boston, 223 Mass. 478 . 699
V. Tower, 9 Pick. 109 . . 677
Turner v. Gardner, 216 Mass. 65 . 12
V. New York, 168 U. S. 90 . 645
V. Nye, 154 Mass. 579 . . 181
Tyler v. Hudson, 147 Mass. 609 . 640
V. Treasurer and Receiver Gen-
eral, 226 Mass. 306 . . 322, 601
Union Inst, for Savings v. Boston, 224
Mass. 286 185
United States v. American Woolen Co.,
265 Fed. 404 ... . 249
V. Cruikshank, 92 U. S. 542 . 635
V. Howe Fed. Cas. No. 15, 404a . 327
V. Jones, 109 U. S. 513 . . 508
V. San Francisco Bridge Co., 88
Fed. Rep. 891 . . . .233
Upham V. Draper, 157 Mass. 292 . 102
Vanhorne v. Dorrance, 2 Dall. 304 . 14
Varney v. Baker, 194 Mass. 239 . 80
Viles V. Waltham, 157 Mass. 542 . 701
Virginia v. Tennessee, 148 U. S. 503 . 741
Voight V. Wright, 141 U. S. 62 . . 408
XXVlll
CASES CITED.
PAGE
Wagner v. Schcrcr, 89 N. Y. App. Div.
202
Walker v. Treasurer and Receiver Gen-
eral, 221 Mass. 600 .. .
Ware v. Fitchburg, 200 Mass. 61
Warren v. Stearns, 19 Pick. 7.3 .
Waterbury v. Piatt, 76 Conn. 4.35
Watson V. Boston, 209 Mass. 18
Wattles ex rel. Johnson v. Upjohn, 211
Mich. 514
Watuppa Reservoir Co. v. Fall River,
147 Mass. 548 ... .
Webb V. Page, 1 Car. & K. 23 (Eng.) .
Welch V. O'Meara, 195 Mass. 541
V. Swaspy, 193 Mass. 364 .
Weld V. Gas & Electric Light Commis-
sioners, 197 Mass. 556 .
Wesson v. Washburn Iron Co., 13 Al-
len, 95
West End St. Ry. Co. v. Malley, 246
Fed. 625
West River Bridge Co. v. Dix, 6 How.
507
West Roxbury v. Stoddard, 7 Allen, 158 263
Western Union Tel. Co. v. Chiles, 214
U. S. 274
V. New York, 38 Fed. 552 .
Wetmore v. Karrick, 205 U. S. 141 .
Whately v. Hatfield, 196 Mass. 393 .
Wheaton College v. Norton, 232 Mass.
141
Wheeler v. HoUis, 19 Tex. 522 .
V. Jackson, 137 U. S. 245 .
V. Watertown Fire Ins. Co., 131
Mass. 1 .... .
Wheelock v. Lowell, 196 Mass. 220, 225 110
Wheelwright v. Tax Commissioner, 235
Mass. 584 735
41
498
66
726
14
574
623
263
327
698
451
726
4.52
368
13
233
14
727
342
574
467
644
492
PAGE
White V. Howard, 52 Barb. 294 . 468
Whiting V. Maiden & Melrose R. R.
Co., 202 Mass. 298 .. , 19
Whitney v. Commonwealth, 190 Mass.
531 260
Whittaker v. Salem, 216 Mass. 483 70, 76,
110, 642, 700
Wiggin V. Swott, 6 Met. 194 . . 452
Wight V. Heublein, 111 Med. 649 . 80
Willard Hotel Co. v. District of Colum-
bia, 23 App. D. C. 272 . . . 678
Williams v. Johnson, 208 Mass. 544 . 117
Williston Seminary v. County Com-
missioners, 174 Mass. 427 . . 574
WUson V. Head, 184 Mass. 515 . 321, 734
Winnisimmet Co. v. Grueby, 209 Mass.
1 64
Wolf V. Germania Ins. Co., 149 Wis.
576 243
Wood V. People, 53 N. Y. 511 . . 652
Worcester v. Board of Appeal, 184
Mass. 460 725
V. Boston, 179 Mass. 41 . . 304
V. Worcester, etc., St. Ry. Co., 182
Mass. 49 29
196 U. S. 539 . . . 29
Worden v. New Bedford, 131 Mass. 23 64
Wright V. Lyons, 224 Mass. 167 . 58,
452, 514
V. Walcott, 238 Mass. 432 . 64,
130, 616
Wurts V. Hoagland, 114 U. S. 606 . 181
Wyeth V. Cambridge Board of Health,
200 Mass. 474 . 165, 170, 352, 401
Yard v. Ocean Beach Association, 49
N. J. Eq. 306 ... . 359
Yick Wo V. Hopkins, 118 U. S. 356 . 453
OPINIONS
OF
JAY R. BENTON, ATTORNEY -GENERAL
Taxation — Trust Companies — Meaning of Words
"Capital Stock."
The words "the total amount of its capital stock," in G. L., c. 63, § 58, are intended
to describe the amount of capital stock authorized, issued and paid in in cash.
So long as a trust company is not dissolved and is not prevented by the State itself
from doing business, it is subject to the franchise tax imposed by G. L., c. 63,
§ 58.
You have requested my opinion as to the application of ^i°gsJj,t?r°of'
G. L., c. 63, § 58, in respect to two trust companies which and^xSation
have appHed for abatement of taxes assessed to them for January 22.
the year 1922 under said section; one on the ground that
on April 1, 1922, it had no assets whatever, having trans-
ferred all of its assets to another trust company which had
assumed its liabilities; and the other on the ground that
on that date the stock of the company had been turned over
to Uquidating agents under an agreement for merger with
another trust company, which had been approved by the
Commissioner of Banks, and the stockholders had voted
that proceedings be taken for the dissolution of the company.
G. L., c. 63, § 58, is as follows: —
Every corporation subject to section fifty-three or fifty-four shall an-
nually pay a tax upon its corporate franchise, after making the deductions
provided for in section fifty-five, at a rate equal to the average of the
annual rates for tln-ee years preceding that in which such assessment is
laid, the annual rate to be determined by an apportionment of the whole
amount of money to be raised by taxation upon property in the common-
wealth during the same year, as returned by the assessors of the several
towns under section forty-seven of chapter fifty-nine, upon the aggregate
OPINIONS OF THE ATTORNEY-GENERAL.
valuation of all towns for the preceding year, as returned under sections
forty-seven and forty-nine of chapter fifty-nine; but the total amount
of the tax to be paid by a trust company in any year upon the value of its
corporate franchise shall amount to not less than two fifths of one per
cent of the total amount of its capital stock, surplus and undivided profits
at the time of said assessment, as found by the commissioner.
The questions presented are, first, whether the words
"the total amount of its capital stock," used in section 58,
mean the amount of the capital stock of the corporation or
the value of its capital assets, including franchises and good
will, less its liabilities; and, secondly, whether or not the
two trust companies referred to were subject to said section.
In the strict and proper sense the "capital stock" of a
corporation is the amount paid in, or to be paid in, as the
capital upon which the corporation is to do business.
American Pig Iron Storage Co. v. State Board of Assessors,
56 N. J. L. 389, 392; State v. Norwich & Worcester R.R.
Co., 30 Conn. 290, 293; Commercial Fire Ins. Co. v. Board
of Revenue, Montgomery Co., 99 Ala. 1, 7; Slater v. Taylor,
241 111. 102, 108; Cook on Corporations, 6th ed., § 8; 14
C. J. 379.
In our corporation laws the term "capital stock" is gen-
erally, if not uniformly, used to designate stock authorized
or issued.
By G. L., c. 172, concerning trust companies, it is pro-
vided in section 7 that the agreement of association shall
specifically state "the amount of its capital stock, and the
number of shares into which it is to be divided," and in
section 11 that, as a preliminary to the transaction of busi-
ness, it must appear that the whole capital stock has been
issued and paid in in cash.
G. L., c. 172, § IS, is as follows: —
The capital stock of such corporation shall be not less than two hun-
dred thousand dollars, except that in a city or town whose population
numbers not more than one hundred thousand the capital stock may be
not less than one hundred thousand dollars, divided into shares of the
par value of one hundred dollars each; and except also that in towns
JAY R. BENTON, ATTORNEY-GENERAL.
whose population is not more than ten thousand the capital stock may
be not less than fifty thousand dollars divided into shares of the par value
of one hundred dollars each; and no business shall be transacted by the
corporation until the whole amount of its capital stock is subscribed for
and actually paid in. Any such corporation may, subject to the approval
of the commissioner, increase its capital stock in the manner provided
by sections forty-one and forty-four of chapter one hundred and fifty-
six. No stock shall be issued by any such corporation until the par
value thereof shall be fully paid in in cash. Any such corporation may,
subject to the approval of the commissioner, decrease its capital stock
in the manner provided by said section forty-one and the first sentence
of section forty-five of said chapter; provided, that the capital stock as
so reduced shall not be less than the amount required by this section.
The franchise tax imposed by G. L., c. 63, §§ 53-60, is
assessed on the value of the corporate franchise, with cer-
tain deductions, that value, by section 55, being defined as
"the fair cash value of all the shares constituting its capital
stock on April first preceding."
In the form of return which the Commissioner requires
from trust companies the first three items on the side of
liabilities are Capital Stock, Surplus, Undivided Profits.
The provision in G. L., c. 63, § 58, imposing a minimum
tax on trust companies measured by the amount of capital
stock, surplus and undivided profits, was first enacted by
Gen. St. 1918, c. 264, § 1, which amended St. 1909, c. 490,
pt. Ill, § 43 (as last amended by Gen. St. 1918, c. 222),
by adding that provision at the end thereof. At the end of
said section 43, before the amendment made by Gen. St.
1918, c. 264, § 1, was the following provision: —
and the total amount of the tax to be paid by such (domestic business)
corporation in any year upon its property locally taxed in this common-
wealth and upon the value of its corporate franchise shall amount to not
less than one tenth of one per cent of the market value of its capital stock
at the time of said assessment as found by the tax commissioner.
Section 43, as thus amended, contained both these pro-
visions, the later immediately following the earlier. One
relates to domestic business corporations and the other to
OPINIONS OF THE ATTORNEY-GENERAL.
trust companies. Both are provisions for minimum taxes,
one purporting to be measured by the market value of the
capital stock and the other by the amount of the capital
stock, to which the amount of surplus and undivided profits
is to be added. In my judgment, it is clear that the Legis-
lature, in using the words "the total amount of its capital
stock," which appear in Gen. St. 1918, c. 264, § 1, and in
G. L., c. 63, § 58, intended to distinguish "amount" from
"value," and meant to describe the amount of capital stock
authorized, issued and paid in in cash.
I take up now the question whether the two trust com-
panies mentioned by you were subject to section 58.
In a recent opinion my predecessor advised you with
reference to the taxation of certain trust companies, some
of which were in the hands of the Commissioner of Banks
on April first, and others of which had ceased to do business
on April first, that the former were not subject to tax, but
that the latter were liable to pay a franchise tax. VI Op.
Atty. Gen. 309. This opinion was given on the authority
of Greenfield Savings Bank v. Co7nmonwealth, 211 Mass.
207, and Attorney General v. Mass. Pipe Line Gas Co.,
179 Mass. 15, 19. In the latter case the rule is stated in
the following words : — •
The franchise which subjects the corporation to taxation is the right
to do business legally by complying with the laws. A corporation having
this right under legislative action cannot relieve itself from liabUity to
taxation by neglecting to do business, or ceasing to do business. Its
franchise remains, and it may do business when it chooses. Nor can it
escape taxation by failing to comply with a statute which is intended to
regulate its conduct while doing business, or before commencing business.
Whatever the effect of such conditions upon the amount to be assessed,
after it once has a capital stock divided into shares nothing short of the
loss of the franchise as a power that may be exercised, if the corporation
chooses to comply with the law, can leave it free from liability to taxation
under the statute.
So long as a corporation is not dissolved its franchise is
outstanding and, in my opinion, is subject to tax, except
JAY R. BENTON, ATTORNEY-GENERAL.
when by the authority of the State itself a corporation is
not permitted to do business. The tax levied by G. L.,
c. 63, § 58, is a franchise tax, i.e., a tax on the right to do
business, and in that respect is to be distinguished from the
tax levied by G. L., c. 63, §§ 32-51, which is an excise with
respect to the carrying on or doing of business, to which
only corporations engaged in business are subject. VI Op.
Atty. Gen. 93.
It is my opinion that the trust companies which you
name, since on April 1, 1922, they were not dissolved and
were not prevented by the State from doing business, were
subject to tax for 1922 under section 58, and that the fact
that one of the companies had made an agreement with
another trust company for a merger, that the stock had been
put in the hands of a liquidating committee, and that the
stockholders had voted to petition for dissolution of the
corporation, does not take the case from the operation of
the rule. Revere v. Boston Copper Co., 15 Pick. 351, 359,
360; Boston Glass Manufactory v. Langdon, 24 Pick. 49;
Briggs v. Cape Cod Ship Canal Co., 137 Mass. 71; Mora-
wetz on Corporations, § 1011.
Military Supplies — Military Purposes.
"Military supplies" are such supplies as are used for the maintenance of the militia
in suitable efficiency.
The term "military purposes" comprehends all such uses as may be said to be
incidental to the general purpose to conserve the military needs of the regi-
mental organization.
You have requested my opinion as to whether "sundry ^°s*,^on^n
miscellaneous articles, such as auto supplies and equipment, andFi
gas and oil, office furniture and equipment, office supphes, janSso.
printing, stationery and postage," used by the Adjutant
General's Department, are military supplies, within the
purview of St. 1922, c. 545, § 10.
The pertinent provisions of that statute are as follows : —
mission on
Administration
nance.
OPINIONS OF THE ATTORNEY-GENERAL.
Section 10. All materials, supplies and other property, except legis-
lative or military supplies, needed by the various executive and adminis-
trative departments and other activities of the commonwealth shall be
purchased by or under the direction of the purchasing bureau in the man-
ner set forth in the three following sections. . . .
Section 11. No supplies, equipment or other property, other than
for legislative or military purposes, shall be purchased or contracted for
by any State department, office or commission unless approved by the
state purchasing agent as being in conformity with the rules, regulations
and orders made under the following section. . . .
Supplies used by the Adjutant General's Department are
not necessarily ''military supplies" or for "military pur-
poses." "Military supplies" may be defined as such sup-
plies as are used for the maintenance of the militia in suit-
able efficiency. Thus the construction and maintenance of
armories may reasonably be treated as necessary for the
maintenance of the militia in suitable efficiency. Hodgdon
V. Haverhill, 193 Mass. 406, 409. The term "military pur-
poses" comprehends all such uses as may be said to be inci-
dental to the general purpose to conserve the military needs
of the regimental organization. McCarter, Attorney General,
V. Dungan, 74 N. J. Eq. 251, 252.
No supplies may be purchased or contracted for by the
Adjutant General's Department except such as come within
the meaning of "military suppUes" or are for "military pur-
poses." Whether or not particular supplies are military
supplies or are used for mihtary purposes is a question of
fact in each instance.
January 26.
jay r. benton, attorney-general.
Election — Registrars of Voters — Recount — Cleri-
cal Assistance — Guard Rail.
Clerical assistants appointed under G. L., c. 54, § 135, may, under the supervision
of the registrars of voters, do the actual counting of ballots at recounts.
Such assistants need not be sworn.
There is no provision of law requiring that a guard rail shall be set up at the place
of a recount of ballots.
I have the request of the Committee on Elections of the commiueTon
House of Representatives (to which was referred the peti- ^'""mr
tions of Napoleon Bergeron and John Hayes, claiming that
they were elected to your body from the Twelfth Essex
Representative District) for my opinion on three matters.
1. Must the registrars of voters of a city or town personally do the
actual recounting of ballots?
G. L., c. 54, § 135, provides for a recount of ballots by
the registrars, and in that section it is stated that "regis-
trars of voters may employ such clerical assistance as they
deem necessary to enable them to carry out this section."
Unless the clerical assistance is to be in the recounting of
the ballots, it is difficult to find any need for any such
authorization, having in mind the things required by said
section. Assuming, therefore, that you wish to know
whether the registrars only must do the counting of the
ballots, I advise you that those employed by them under
the provision above quoted may, under their supervision,
do in whole or in part the actual counting.
2. Must the clerical assistants to the registrars, as provided in G. L.,
c. 54, § 135, last paragraph, be sworn, in any event?
The paragraph to which you refer is the provision above
quoted. I do not find any statutory requirement to that
effect, such as exists in the case of election officers. I am
therefore of the opinion that they need not be sworn.
3. Do unauthorized persons have a right to go behind the guard rail?
OPINIONS OF THE ATTORNEY-GENERAL.
There is no provision of law, such as exists in regard to
voting places at primaries or elections, which requires
registrars to set up a guard rail. The statute requires that
each candidate "shall be allowed to be present and witness
such recount, either in person, accompanied by counsel, if
he so desires, or by an agent appointed by him in writing.
It is a question of fact in each instance whether such oppor-
tunity to be present and witness the recount has been
afforded.
To the Com-
missioner of
Civil Service.
1923
February 5.
Records — Public Records — Public Inspection.
The only records open to public inspection are public records and those which
some statute specifically provides shall be so open.
Public records are records required by law to be filed, or upon which the law re-
quires an entry to be made.
You request my opinion as to whether certain books and
papers of the Board of Registration in Pharmacy are open
to the inspection of the public, representatives of the press
or attorneys at law.
The only records open to public inspection are public
records and those which some statute specifically provides
shall be so open.
G. L., c. 66, § 10, provides: —
Every person having custody of any public records shall, at reasonable
times, permit them to be inspected and examined by any person, under
his supervision, and shall furnish copies thereof on payment of a reason-
able fee. . . .
R. L., c. 35, § 5, now G. L., c. 66, § 3, provides: —
In construing the provisions of this chapter and other statutes, the
words "public records" shall, unless a contrary intention clearly appears,
mean any written or printed book or paper, any map or plan of the com-
monwealth or of any county, city or town which is the property thereof
and in or on which any entry has been made or is required to be made
by law, or which any officer or employee of the commonwealth or of a
county, city or town has received or is required to receive for tiling, , . .
JAY R. BENTON, ATTORNEY-GENERAL.
This section relates only to books, papers, maps and
plans which are "intended for the use of the public" and
required by law to be filed, or upon which the law requires
an entry to be made. Round v. Police Commissioner, 197
Mass. 218; I Op. Atty. Gen. 186, 278, 280, III Op. Atty.
Gen. 122, 136, 351.
A former Attorney-General, in an opinion (II Op. Atty.
Gen. 381), relative to this section, said: —
This legislative definition cannot be held to include within its intention
every paper which an officer of the Commonwealth receives and files.
It must be Kmited to such as he is required by law to so receive for filing.
Any other construction must be prejudicial to the rights and interests
of the Commonwealth or its officers, and indeed, of parties or persons
making communications with such officers.
G. L., c. 66, § 3, defines ''record," and merely refers to
"public records" without defining them. The definition of
"public records" previously established is, however, carried
over into this act, since no clear intent to the contrary
appears.
Only such records, therefore, as you are required by some
specific statute to keep, receive for filing, or upon which
you are required to make an entry, are open to public
inspection.
G. L., c. 112, § 25, provides: —
The board shall keep a record of the names of aU persons examined
and registered by it, of all persons to whom permits are issued under
section thirty-nine, and of all money received and disbursed by it, and a
duplicate thereof shall be open to public inspection in the office of the
state secretary . . .
I am therefore of the opinion that only the records referred
to in the above section are open to the inspection of the
general public. Representatives of the press and attorneys
at law stand upon no different footing from the general
public. A registered pharmacist, against whom a com-
10 OPINIONS OF THE ATTORNEY-GENERAL.
plaint or charge is pending before the board, or his counsel,
has, in addition to his right of inspection as a member of
the public, a right of access to certain other documents.
G. L., c. 112, § 33, provides: —
A registered pharmacist against whom a complaint or charge is pend-
ing before the board, or his counsel, shall have the same right of access to
documents in the possession of said board as a person charged with crime
in the courts of the commonwealth would have to documents in the pos-
session of the clerk of the court or the prosecuting officer.
This would include a right of access to the complaint,
entries made thereon, the finding of the board, and any
deposition (not affidavits) which might be taken. What
other documents might be included would depend upon the
facts of the specific case.
You inquire further whether transcripts of the testimony
given at hearings "should be provided, either at the State's
expense or at the expense of the person desiring the same,
or whether they should be provided at all except through
summons and court process." I find no provision of law
requiring the board to have stenographic notes taken of
such testimony, and I am consequently of the opinion that
you are not required to furnish transcripts under any cir-
cumstances. A stenographer, when duly summoned, may
be required to read his notes in any judicial proceedings.
Whether or not you should furnish a transcript of such
testimony to parties in interest, and under what terms such
transcript should be supplied, is a matter of policy for you
to determine.
jay r. benton, attorney-general. 11
Constitutional Law — Impairment of Contract —
Eminent Domain — Police Power — Boston Ele-
vated Railway Company — Eastern Massachu-
setts Street Railway Company.
The power to take property by eminent domain and the police power are sovereign
powers which cannot be granted away by contract with the State.
Certain bills, if enacted, would be unconstitutional, for reasons stated in previous
opinions.
A bill providing for the construction of a tunnel in Boston and a lease thereof to
the Boston Elevated Railway Company, with a proviso that if the company
does not consent thereto its elevated structures shall be removed without
compensation, would, if enacted, be unconstitutional as an impairment of the
contract contained in Spec. St. 1918, c. 159, and an arbitrary confiscation of
the company's property.
A bill providing for an amendment of Spec. St. 1918, c. 1.59, to take effect on its
acceptance by the Boston Elevated Railway Company, if enacted, would be
constitutional, under circumstances stated in the opinion.
Bills providing for the taking by eminent domain of property of the Eastern Massa-
chusetts Street Railway Company and leasing the same to the Boston Elevated
Railway Company would be constitutional, if enacted.
On behalf of the committee on rules you have asked my J^^^^^^f Rep-
opinion upon the constitutionality of several street railway resen^^atives.
bills now pending before the committee. Within the past
two years my predecessor has given opinions to committees
of the House of Representatives on the constitutionality of
bills relating directly or indirectly to the service and man-
agement of the Boston Elevated Railway Company and
Eastern Massachusetts Street Railway Company, involving
a consideration of the application and effect of Spec. St.
1918, c. 159, and Spec. St. 1918, c. 188. VI Op. Atty. Gen.
147, 396. In these opinions he ruled that the provisions in
each of said statutes relating to the right of the trustees to
regulate and fix fares and to determine the character and
extent of the service and the facilities to be furnished, and
the right of the directors to pass upon contracts for the con-
struction or operation of additional lines, constituted con-
tracts between the Commonwealth and the companies
concerned which could not be impaired without violating
U. S. Const., art. I, § 10, and that a number of the bills
submitted would, if enacted into law, be unconstitutional
February 6.
12 OPINIONS OF THE ATTORNEY-GENERAL.
because they contained provisions which would directly
impair the contractual rights given by the two special
statutes of 1918.
With reference to Spec. St. 1918, c. 158, the court held,
in Boston v. Treasurer and Receiver General, 237 Mass. 403,
413, 414, that that statute, "having been accepted by the
railway companies (the Boston Elevated Railway Company
and the West End Street Railway Company), constitutes
an agreement between the Boston Elevated Railway Com-
pany and the Commonwealth that the latter shall take over
the management and operation of the railway company and
shall pay therefor the amounts specified in way of compen-
sation for the use thereof," and that the act is constitutional.
Some of the bills on which my opinion is asked are plainly
open to the objections stated in the opinions of my prede-
cessor. Others involve wholly different considerations.
Several of the bills provide for the taking of the property
of one or the other of the two companies in the exercise of
the power of eminent domain or of the police power. It
is therefore desirable at the outset to state some of the more
fundamental principles governing the nature, extent and
limitations of those powers and the manner in which they
must be exercised.
The power to take property by eminent domain for public
use is one of the high prerogatives of government. Turner
V. Gardner, 216 Mass. 65, 70; Kohl v. United States, 91
U. S. 367, 371. It cannot be granted away by contract
with the State. Such a grant, if it were attempted to be
made would not come under the protection of the contract
clause of the Federal Constitution, Pennsylvania Hospital
V. Philadelphia, 245 U. S. 20. The fact that the taking
renders impossible further performance of a contract touch-
ing the property taken does not impair the obligation of
such contract. Long Island Water Supply Co. v. Brooklyn,
166 U. S. 685.
The property taken must be appropriated to public and
not private uses. Mass. Const., pt. I, art. X; Salisbury
JAY K. BENTON, ATTORNEY-GENERAL. 13
Land & Improvement Co. v. Commonwealth, 215 Mass. 371,
377. Property already devoted to a public use may be
taken for a different public use, and such an exercise of the
right of eminent domain over property or rights in the
nature of property previously granted by the State does not
impair the obhgation of a contract. Franchises, like other
property, are subject to the sovereign right of eminent do-
main. Boston Water Power Co. v. Boston & Worcester. R.R.
Corp., 23 Pick. 360; Central Bridge Corp. v. Lowell, 4 Gray,
474, 481; Eastern R.R. Co. v. Boston & Maine R.R., 111
Mass. 125, 131; Old Colony R.R. Co. v. Framingham Water
Co., 153 Mass. 561 ; West River Bridge Co. v. Dix, 6 How. 507.
But property cannot be taken from one party who holds
it for a public use and given to another to hold in the same
manner for precisely the same public use. Such a taking,
effecting a mere change of control, cannot be founded on a
public necessity. Boston Water Power Co. v. Boston &
Worcester R.R. Corp., 23 Pick. 360, 393; Cary Library v.
Bliss, 151 Mass. 364, 378-380; Lake Shore & Michigan
Southern Ry. v. Chicago & Western Indiana R.R., 97 111. 506.
In this connection the provisions in Spec. St. 1918, c. 159,
§ 16, and Spec. St. 1918, c. 188, § 19, reserving the right of
the Conmionwealth to acquire the property and franchises
of the respective companies at any time through the exercise
of the power of eminent domain, should be noted. While
these provisions cannot be taken to diminish the power of
the Commonwealth to take property by eminent domain in
any case, they may have the effect of an agreement by the
companies that their property may be taken by the Com-
monwealth even if such taking works a mere change of
control.
There is a fm-ther constitutional requirement that "rea-
sonable compensation" must be paid. Declaration of
Rights, art. X. It seems to be generally accepted that
compensation must be made in money, to be paid within
a reasonable time after the taking, and that future obliga-
tions cannot be substituted. Attorney General v. Old Colony
14 OPINIONS OF THE ATTORNEY-GENERAL.
R.R. Co., 160 Mass. 62, 90, 91; Commonwealth v. Peters,
2 Mass. 125; Vanhorne v. Dorrance, 2 Dall. 304; Water-
hury V. Piatt, 76 Conn. 435.
The police power similarly is a sovereign power of which
the State cannot be divested by any act of Legislature.
Commonwealth v. Alger, 7 Cush. 53, 85; Boston Beer Co.
V. Massachusetts, 97 U. S. 25; New Orleans Gas Co. v.
Louisiana Light Co., 115 U. S. 650. "A requirement that
a company or individual comply with reasonable police
regulations without compensation is the legitimate exercise
of the power and not in violation of the constitutional inhi-
bition against the impairment of the obligation of contracts."
Northern Pacific Ry. Co. v. Duluth, 208 U. S. 583, 596. This
principle has been applied in decisions sustaining regulations
requiring railroad companies at their own expense to move
grade crossings {New York & New England R.R. Co. v.
Bristol, 151 U. S. 556; Northern Pacific Ry. Co. v. Duluth,
208 U. S. 583) ; requiring a railroad company to remove a
railroad track from a city street {Denver & R. G. R.R. Co.
V. Denver, 250 U. S. 241); requiring a gas company at its
own expense to change the location of gas pipes to accom-
modate a system of drainage {New Orleans Gas Co. v. Drain-
age Commission, 197 U. S. 453) ; and requiring overhead
wires to be removed and placed under ground {People v.
Squire, 107 N. Y. 593; Western Union Tel. Co. v. New York,
38 Fed. 552). But the exercise of the power must be rea-
sonable in its character, and, under the guise of legislation
for the public good, property cannot be arbitrarily con-
fiscated or destroyed. Durgin v. Minot, 203 Mass. 26;
Dobbins v. Los Angeles, 195 U. S. 223; Dillon, Municipal
Corporations, 5th ed., §§ 1269, 1270.
With these preliminary observations I now proceed to a
particular consideration of the bills which you have sub-
mitted to me.
1. Petition for the establishment of fwe-cent fare zones for transportation
on the street railways in the city of Lynn.
JAY R. BENTON, ATTORNEY-GENERAL. 15
The bill submitted with this petition provides specifically
that the Eastern Massachusetts Street Railway Company
shall carry passengers on its cars within certain areas for
five cents. Such a provision would be a direct impairment
of the right given the trustees by Spec. St. 1918, c. 188, to
regulate and fix fares on the lines of that company.
2. Petition for the construction of an additional tunnel and subway in
the city of Boston and the removal of the elevated railuri]/ structure in the
Charlestown district of said city.
' The bill accompanying this petition in substance provides
that the Boston Transit Commission shall construct a tun-
nel and subway from the northerly end of the present
Washington Street tunnel to Sullivan Square; that the
commission shall within ninety days after the passage of the
act execute with the Boston Elevated Railway Company,
in the name of the city, the company consenting thereto,
a contract in writing for the sole and exclusive use of the
tunnel and subway and appurtenances, for a period not be-
yond the period of existing leases of subways to the company,
at an annual rental of four and one-half per cent of the net
cost; that at the next city election the question shall be
submitted to the voters of the city of Boston whether they
favor the removal of the elevated structure and the sub-
stitution therefor of subways or tunnels in the city of
Boston; that if a majority of the voters actually voting
answer the question in the affirmative, and if the company
shall not execute the contract with the commission, the
company shall forthwith discontinue the use of and remove
its elevated structures between the present Washington
Street tunnel and Sullivan Square and between the present
Washington Street tunnel and Dudley Street, together with
all connections, deflections, loops, stations, etc., and any
locations theretofore granted to the company between said
points shall be thereafter revoked as being a menace to the
public health and a detriment to the public welfare; but
that if the contract is executed by the company, upon the
16 OPINIONS OF THE ATTORNEY-GENERAL.
completion of the tunnel or subway and appurtenances
and upon notification, the company shall remove and for-
ever discontinue the use of that part of its elevated structure
for which the tunnel or subway has been substituted, the
expense of removing the same to be a part of the cost of
the tunnel or subway; and in that event the damages sus-
tained by the company above the benefit received are to
be determined and paid.
Briefly summarized, the bill gives to the company an
option within ninety days after the passage of the act to
execute a contract for the sole and exclusive use of the pro-
posed tunnel, with the alternative provisions that if such
a contract is executed and the city votes to construct the
tunnel, the elevated structure between the northerly end of
the Washington Street tunnel and Sullivan Square shall be
taken by the city and removed, the cost of removal to be
charged to the cost of construction of the subway and ade-
quate compensation for the taking paid to the company
therefor, while if the contract is not executed and the city
votes to construct the tunnel, the entire elevated structure
of the company shall be removed by the company at its
own expense and without compensation, as a menace to
the public health and a detriment to the public welfare.
Spec. St. 1918, c. 159, gives to the trustees of the Boston
Elevated Railway Company the authority to determine the
character and extent of the service and facilities to be fur-
nished, subject to the consent of the directors to the making
of contracts for the operation or lease of subways, elevated
or surface lines in addition to those then owned, leased or
operated by the company, or any extensions thereof beyond
their then hmits, involving the payment of rental or other
compensation by the company beyond the period of public
operation. Assuming that the provision in this bill for
securing the company's consent means consent by the offi-
cials authorized to act by Spec. St. 1918, c. 159, the provi-
sion that if the company shall not consent its entire elevated
structure shall be removed without compensation would, in
JAY R. BENTON, ATTORNEY-GENERAL. 17
my opinion, if enacted, be unconstitutional for two reasons :
first, because it manifestly is included in an attempt to
coerce the trustees and directors to make a contract for the
use of the proposed tunnel, and would, therefore, be an
impairment of the contract with the Commonwealth con-
tained in said Spec. St. 1918, c. 159, and secondly, because
it would be manifestly an arbitrary confiscation of the
property of the company under the guise of legislation for
the public welfare. WTiether the company's elevated struc-
ture, erected under the authority and direction of the
Legislature (St. 1894, c. 548, and amending acts), could be
ordered to be removed without compensation to the com-
pany, under any circumstances, as an exercise of the police
power, is, to say the least, doubtful. But an act containing
a merely alternative provision for such removal as a penalty
for failing to do some voluntary act would, on its face, show
that the provision for removal was not passed as a matter
of public necessity but in order to compel the doing of the
voluntary act. For these reasons, as I have stated, the
provisions of this bill which I have referred to are, in my
judgment, plainly unconstitutional.
3. Petition for an (micndment of the law providing for the public operation
of the Boston Elevated Railway Company and. establishing a five-cent fare on
the lines of said company.
The bill accompanying this petition amends Spec. St.
1918, c. 159, by striking out provisions giving the trustees
the right to regulate and fix fares, requiring them to estab-
hsh a five-cent fare for a single continuous passage in the
same general direction upon the roads owned, leased or
operated by the company, and providing that the difference
between the amount received from fares and the cost of
service shall be paid by the Commonwealth. There is also
an amendment to section 14 changing the method of ap-
portionment of amounts assessed to cities and towns to
meet any deficit. The bill provides that the act shall take
18 OPINIONS OF THE ATTORNEY-GENERAL.
effect upon its acceptance by the Boston Elevated Railway
Company before January 1, 1924.
The provisions of this bill, taking from the trustees the
right to regulate and fix fares and establishing a five-cent
fare, are clearly in derogation of the grant contained in
Spec. St. 1918, c. 159, and the proposed act would there-
fore be unconstitutional unless the changes were accepted
by the parties to the con^tract. The parties to the contract,
other than the Commonwealth, are the Boston Elevated
Railway Company and the West End Street Railway Com-
pany (see Boston v. Treasurer and Receiver General, 237
Mass. 403, 413). In his opinion to you (VI. Op. Atty. Gen.
396), my predecessor ruled, with reference to a bill to repeal
Spec. St. 1918, c. 159, containing a provision that it should
take effect upon its acceptance by the directors or a majority
of the stockholders of the Boston Elevated Railway Com-
pany, that the proposed act would be unconstitutional be-
cause the directors could not exercise the power attempted
to be conferred upon them to impair the obligation of Spec.
St. 1918, c. 159, which had become a binding contract by
acceptance of the stockholders of the two companies. In
that opinion my predecessor expressly reserved the question
whether, if the bill provided simply that the act should take
effect upon its acceptance by a majority of the stockholders
of the Boston Elevated Railway Company, it would be
constitutional. That precise question is now before me for
decision, understanding, as I do, that the provision that the
act shall take effect ''upon its acceptance by the Boston
Elevated Railway Company" means its acceptance by the
stockholders of that company.
Ordinarily the stockholders of a corporation by a majority
vote may assent to an amendment or repeal of a statute
constituting a contract between the State and their corpora-
tion. Pennsylvania College Cases, 13 Wall. 190; Chicago
L. Ins. Co. V. Needles, 113 U. S. 574; Cf. Durfee v. Old
Colony, etc., R.R. Co., 5 Allen, 230. Applying this rule, if
the Boston Elevated Railway Company were the sole party
JAY R. BENTON, ATTORNEY-GENERAL. 19
to the contract with the Commonwealth the proposed act
would, in my opinion, be constitutional. But the West
End Street Railway Company was also a party to the con-
tract, and if that corporation is now in existence, in my judg-
ment, acceptance of the act by its stockholders should be
provided for. Such provision was made in the Senate bill,
affecting Spec. St. 1918, c. 159, considered by the court in
Opinion of the Justices, 231 Mass. 603, 606, where the court
gave their opinion that the bill, if enacted, would be consti-
tutional, without, however, considering its effect on the con-
tractual rights of the corporations concerned. I am in-
formed that, under St. 1911, c. 740, the properties and
franchises of the West End Street Railway Company have
been conveyed to the Boston Elevated Railway Company,
and preferred stock of the latter has been issued to the
former in payment therefor, of which a large proportion
has been distributed to its stockholders. Whether thereby
a merger of the corporate franchise of the West End Street
Railway Company has been effected, so that its identity
has been destroyed, is a doubtful question about which I
am not sufficiently advised as to the facts to express an
opinion. See Parkinson v. West End Street Ry. Co., 173
Mass. 446; Whiting v. Maiden & Melrose R.R. Co., 202
Mass. 298. If such a merger has taken place, acceptance
by the stockholders of the Boston Elevated Railway Com-
pany is necessarily sufficient; but otherwise I think the
stockholders of the West End Street Railway Company
should also be given an opportunity to accept or reject
the act.
The Boston Elevated Railway Company has different
classes of stockholders. In the Senate bill considered and
held constitutional in Opinion of the Justices, 231 Mass. 603,
holders of the preferred stock issued under Spec. St. 1918,
c. 159, § 5, were excluded from voting on the question of
acceptance, but, as I have said, the court in their opinion
did not consider the question whether the constitutional
rights of the corporations were affected. I see no reason
20 OPINIONS OF THE ATTORNEY-GENERAL.
why the right of stockholders to vote on the question of
acceptance should be in any respect different from their
right to vote generally as prescribed by the statutes and
by-laws of the corporation.
My opinion, therefore, is that the bill, if enacted, would
be constitutional if the West End Street Railway Company
has, in fact, ceased to exist, but that otherwise it would
not be constitutional unless provision were made for ac-
ceptance by the stockholders of that company.
4. Petition that the city of Boston be authorized to purchase or take by
eminent domain the property and franchises of the Eastern Massachusetts
Street Railway Company in the Hyde Park district of said city for the pur-
pose of leasing the same to the Boston Elevated Railway Company.
The bill accompanying this petition authorizes the city
of Boston, through its transit department, with the approval
of the mayor, to purchase or take by eminent domain the
whole or any portion of the street railway locations, tracks,
poles, wires and other property used in connection there-
with, owned by the Eastern Massachusetts Street Railway
Company and located in Hyde Park, which, in its opinion,
is necessary for the safe and efficient operation of street
railways in that portion of Boston. It provides that before
such purchase or taking the department shall, with the
approval of the mayor, execute with the Boston Elevated
Railway Company, in the name of the city, the company
consenting thereto, a contract in writing for the sole and
exclusive use of said property at an annual rental of four
and one-half per cent of the net cost for an imspecified term
of years. In order to be vaUd, as I have previously said,
the consent of the company must be given by those officials
who are authorized by Spec. St. 1918, c. 159, to determine
whether the property should be leased.
There are provisions for the issuing of bonds and notes
to be used in meeting damages, costs and expenses incurred
in carrying out the provisions of the act. The bill does
not expressly provide that compensation shall be paid to
JAY R. BENTON, ATTORNEY-GENERAL, 21
the Eastern Massachusetts Street Railway Company for
its property taken by eminent domain, and does not pro-
vide the method by which the amount of such compen-
sation shall be determined. But it is not necessary that
the proposed act shall expressly provide for payment of
compensation or the method of determining this amount.
The General Laws contain adequate provisions for payment
of such compensation. G. L., c. 79, §§ 6, 12, 14, 45. The
bill secures payment by the provision for an issue of bonds
and notes outside the statutory limit of indebtedness, assum-
ing that the amount of such issue, left undetermined in the
bill, is adequate. These provisions would seem to be
sufficient. Brimmer v. Boston, 102 Mass. 19, 23; Bent v.
Emery, 173 Mass. 495, 498.
This bill raises the question of major importance whether
the Eastern Massachusetts Street Railway Company can
be taken by the Commonwealth or a political subdivision
thereof for the purpose of leasing that property to the
Boston Elevated Railway Company. As I have previ-
ously stated, property cannot be taken from one party
holding it for a public use and given to another to hold in
the same manner for precisely the same public use, since
such a taking, effecting a mere change of control, cannot
be founded on a public necessity. But the taking here
proposed is of not precisely that sort. The use proposed
to be made of the property is to lease it to the Boston Ele-
vated Railway Company for some number of years, on
terms to be agreed upon, which must, therefore, be such as
the trustees and the directors of that company, under Spec.
St. 1918, c. 159, have power to make. It should not be
overlooked that the Commonwealth, in Spec. St. 1918,
c. 188, § 19, has expressly reserved the right to take this
property by eminent domain. The force of the argument
in favor of the bill, I presume, is that the pubUc will thereby
receive the benefit of a unified transportation system with
a unified control, and that in no other way can that desir-
able result be achieved. In view of these considerations.
22 OPINIONS OF THE ATTORNEY-GENERAL.
in my opinion, the proposed act, if enacted, would be con-
stitutional.
5. Petition for the creation of a Metropolitan Transportation District.
The bill accompanying this petition creates a metropoli-
tan transportation district composed of the cities and towns
of Arlington, Belmont, Boston, Brookline, Cambridge,
Chelsea, Everett, Maiden, Medford, Newton, Revere,
Somerville and Watertown. It contains provisions for the
management of the affairs of the district and provides for
the purchase or taking of any or all street railway tracks,
poles, wires, lands, property and appurtenances and any
rights or interest therein, except the interest of the Boston
Elevated Railway Company therein, owned, leased or
operated in whole or in part by the Eastern Massachusetts
Street Railway Company in East Boston, Charlestown,
Everett, Chelsea, and in Revere and Maiden with certain
exceptions, after the execution of a contract for use as
therein provided. It authorizes the execution with the
Boston Elevated Railway Company of a contract in writ-
ing for the sole and exclusive use by that company of the
street railway tracks and other property about to be taken,
at a rental of five per cent of the net cost, the term ending
with the termination of public operation of the company.
It provides that the lines of transportation thus added to
the railway system of the Boston Elevated Company shall
be managed by the public trustees appointed under Spec.
St. 1918, c. 159, as if a part of the system at the date of the
passage of that act. It provides an adequate method for
determination of damages caused by the taking, and makes
the district liable for the amount thereof. It provides for
payment by the issuing and selling of bonds of the district
to a Umit not specified, and provides that any deficit in
income necessary to meet the principal and interest of such
bonds and other expenses shall be apportioned by the
Treasurer of the Commonwealth among the several cities
JAY R. BENTON, ATTORNEY-GENERAL. 23
and towns included in the district and added to the amounts
due from such cities and towns in the State tax next there-
after to be collected. There are other provisions giving
powers and duties to the district and its officers which it is
not necessary now to refer to.
The general nature of the scheme and system here laid
out is similar to that of the bill last considered, and what I
said there will apply here. I should, however, refer speci-
fically to the provision that the lines of transportation added
to the system of the Boston Elevated Railway Company
by the provisions of the act shall be managed by the trus-
tees as if a part of the system at the date of the passage of
that act. No such obligation, of course, could be imposed
upon the trustees without their consent, but the bill does
not purport to impose any such obhgation upon them with-
out their consent, since the lease is to be made with the
consent of the company for a term ending with the termina-
tion of public operation, and therefore cannot be made ex-
cept by the trustees; and if the lease is made by them the
privileges and obligations defined by the bill are precisely
those under which the trustees would operate by virtue of
Spec. St. 1918, c. 159. Therefore, in my judgment, this
bill, if enacted into law, would be constitutional.
6. Petition that the Boston Elevated Railway Company be authorized to
enlarge its terminal at Forest Hills in the West Roxbury district of the city
of Boston.
The bill accompanying this petition purports to authorize
the Boston Elevated Railway Company to enlarge its ter-
minal at Forest Hills, and for that purpose to take property
by eminent domain, whether privately or publicly owned,
to borrow money and issue bonds and notes. It provides
that takings and proceedings for compensation and other
proceedings thereunder shall be in accordance with the pro-
visions of St. 1921, c. 386. (VI Op. Atty. Gen. 410.) I see
nothing in the proposed act repugnant to any constitutional
provision.
24 OPINIONS OF THE ATTORNEY-GENERAL.
7. Petition that the Boston Elevated Railway Coynpany be required to
keep in repair the portions of highways occupied by its tracks.
The bill here presented involves entirely different con-
siderations and will be dealt with in a separate opinion.
8. Petition that provisions be made for improved transportation facilities
between the cities of Boston and Revere.
The bill accompanying this petition empowers the Boston
Elevated Railway Company to extend its transportation
system and, with the approval of the Department of Public
Utilities, after public hearing, to take by eminent domain,
subject to the provisions of G. L., c. 79, or to acquire by
purchase, street railway lines within the city of Revere,
together with tracks, poles, wires and other structures and
appliances connected therewith, all property so taken or
acquired to be the property of the company and to be used
and operated with and as part of its railway system and
subject to the management and control provided by Spec.
St. 1918, c. 159. The company is empowered, with the
approval of the trustees, during the term of pubhc opera-
tion, to issue stocks, bonds, notes and other evidences of
indebtedness to provide funds for payment of properties
taken or acquired under the provisions of the act, such
securities to be subject to Spec. St. 1918, c. 159, § 6, so far
as applicable.
What I have said concerning petitions numbered 4 and 5
is equally pertinent in the consideration of this bill, except
that here the taking is not to be made by the Common-
wealth or any political subdivision thereof, but by the Bos-
ton Elevated Railway Company, to which control of the
property taken is transferred. I do not, however, believe
that in order to be vahd such a taking must be by the Com-
monwealth or some political subdivision thereof. Because
of the legitimate pubhc interest which may be served through
unified control and ownership, the proposed act, if enacted,
would be constitutional, in my opinion.
JAY R. BENTON, ATTORNEY-GENERAL. 25
9. Petition for the acquisition and 'public operation by the city of Boston
of street railway lines in the Hyde Park district of said city.
The bill accompanying this petition purports to create
in the Hyde Park section of Boston a district for the pur-
poses of street railway transportation, and to make the
trustees of the Boston Elevated Railway Company, under
Spec. St. 1918, c. 159, a corporation under the name of
Hyde Park Transportation District, with all the powers of
a street railway company organized under the General
Laws. It purports to provide that certam lines named
within that district shall be managed and operated by the
corporation in behalf of the city of Boston as lines of the
Boston Elevated Railway Company, subject to the provi-
sions of Spec. St. 1918, c. 159. It further purports to pro-
vide that the Eastern Massachusetts Street Railway Com-
pany shall cease to operate said street railway lines and shall
permit the corporation to take over and use the same and
all property appurtenant thereto, with a provision that the
corporation shall pay to the company an annual rental at
the rate of five per cent on a sum equal to the value of the
property taken. There are other provisions purporting to
regulate rates of fare, and other provisions which need not
now be referred to.
In my opinion, this bill is clearly unconstitutional, both
because of additional powers and duties imposed upon the
trustees of the Boston Elevated Railway Company in vio-
lation of the provisions of Spec. St. 1918, c. 159, and because
the management and control of the Eastern Massachusetts
Street Railway Company is taken from the trustees thereof
in violation of the contract contained in Spec. St. 1918,
c. 188. The bill does not indicate an intention that the
property of the Eastern Massachusetts Street Railway Com-
pany shall be taken by an exercise of the power of eminent
domain, and its provisions, in my opinion, cannot be so
construed. But if the exercise of that power were intended
by the bill, there is clearly no adequate provision for com-
26 OPINIONS OF THE ATTORNEY-GENERAL.
pensation, since there is no provision for payment for the
property taken, but only a provision for the payment of
annual rental. Attorney General v. Old Colony R.R. Co.,
160 Mass. 62.
10. Petition relative to establishing a five-cent fare zone on street railway
lines operated in the city of Lowell.
The bill accompanying this petition provides specifically
that the rate of fare for a single passage on the lines of the
Eastern Massachusetts Street Railway Company operating
in the city of Lowell within the limits of travel of two miles
from Kearney Square shall be five cents. Such a provision
would be a direct impairment of the right given the trustees
by Spec. St. 1918, c. 188, to regulate and fix fares on the
lines of that company.
With respect to the nine bills which I have dealt with I
have not attempted to scrutinize with particularity each
one of them and point out every detailed feature which
may be objectionable. Your inquiry not being directed to
any specific feature of the bills, it is clear that it is impos-
sible for me to foresee every question that might be raised
or that your committee might have in mind. I have con-
fined my attention to the fundamental questions of consti-
tutional law involved in each bill which to me seem to merit
consideration.
February 7.
jay r. benton, attorney-general. 27
Constitutional Law — Impairment of Contract —
Requirement that Boston Elevated Railway
Company keep in Repair Portions of Highways
occupied by its Tracks.
A statute requiring the Boston Elevated Railway Company to keep in repair
the portions of highways occupied by its tracks, and exempting it from taxes
imposed by G. L., c. 63, §§ 61-66, inclusive, would be constitutional.
On behalf of the committee on rules you have transmitted Joul'e^of Rep-
to me the petition of Edward W. Quinn, mayor of the city -^eseiuft'^^^-
of Cambridge, and another, that the Boston Elevated Rail-
way Company be required to keep in repair the portions of
highways occupied by its tracks, and have asked my opinion
as to the constitutionality of that measure.
The bill accompanying the petition is as follows : —
Section 1. During the period of public operation of the Boston Ele-
vated Railway Company under the provisions of chapter one hundred
and fifty-nine of the special acts of nineteen hundred and eighteen, and
acts in amendment thereof, and supplementary thereto, the Boston
Elevated Railway Company shall keep in repair, to the satisfaction of
the superintendent of streets, street commissioner, road commissioners,
or surveyors of highways, the paving, upper planking or other surface
material of the portions of streets, roads and bridges occupied by its
tracks; and if such tracks occupy unpaved streets or roads, shall, in
addition, so keep in repajr eighteen inches on eaph side of the portion
occupied by ife tracks, and shall be liable for any loss or injury that any
person may sustain by reason of the carelessness, negligence or miscon-
duct, of its agents and servants in the construction, management, and
use of its tracks.
Section 2. When a party upon the trial of an action recovers damages
of a city or town for an injury caused to his person or property by a de-
fect in a street, highway, or bridge occupied by the tracks of said com-
pany, if said company is liable for such damages, and has had reasonable
notice to defend the action, the city or town may recover of the said
company, in addition to the damages, all costs of both plaintiff and de-
fendant in the action.
Section 3. During the period of public operation of the Boston Ele-
vated Railway Company under the provisions of chapter one hundred
and fifty-nine of the special acts of nineteen hundred and eighteen, and
acts in amendment thereof and supplementary thereto, said company
28 OPINIONS OF THE ATTORNEY-GENERAL.
shall not be required to make the returns nor shall there be assessed upon
or paid by it the taxes required by sections sixty-one to sixty-six, inclusive,
of chapter sixty-three of the general laws.
Your question requires a somewhat extended analysis of
the charter of the Boston Elevated Railway Company and
certain amendments thereof, of statutes relating to the re-
pair of highways occupied by street railway companies, and
of decisions and opinions interpreting those statutes and
their effect.
The Boston Elevated Railway Company was incorporated
by St. 1894, c. 548. At the time of its incorporation P. S.,
c. 113, § 32, was in force, containing the following pro-
vision : —
Every street railway company shall keep in repair, to the satisfaction
of the superintendent of streets, street commissioner, road commissioners,
or surveyors of highwaj^s, the paving, upper planking, or other surface
material of the portions of streets, roads, and bridges occupied by its
tracks; and if such tracks occupy unpaved streets or roads, shall, in
addition, so keep in repair eighteen inches on each side of the portion
occupied by its tracks, and shall be liable for any loss or injury that any
person may sustain by reason of the carelessness, neglect, or misconduct,
of its agents and servants in the construction, management, and use of
its tracks.
The charter of the Boston Elevated Railway Company
was amended in many respects by St. 1897, c. 500. Section
10 of that statute contained the following provision: —
. . . During said period of twenty-five years no taxes or excises not at
present in fact imposed upon street railways shall be imposed in respect
of the lines owned, leaded or operated by said corporation, other than
such as may have been in fact imposed upon the lines hereafter leased or
operated by it at the date of such operating contract or of such lease or
agreement hereafter made therefor nor any other burden, duty or obliga-
tion which is not at the same time imposed by general law on all street
railway companies; provided, however, that said corporation shall be
annually assessed and shall pay taxes now or hereafter imposed by general
law in the same manner as though it were a street railway company, and
JAY R. BENTON, ATTORNEY-GENERAL. 29
shall, in addition, . . . pay to the Commonwealth, . . . during said
period of twenty-five years, an annual sum, ... (to be determined as
therein provided).
The law requiring street railway companies to keep in
repair portions of streets occupied by their tracks was
materially changed in the following year by St. 1898, c. 578.
Section 1 excepted from the operation of the act the Boston
Elevated Railway Company and companies whose railways
were then leased or operated by said company. Sections
6 to 10, inclusive, imposed upon street railway companies
an additional excise tax for the benefit of cities and towns in
which such companies were operating, to be applied to the
construction, repair and maintenance of the public ways and
the removal of snow therefrom. Section 11 contained the
provision that "street railway companies shall not be re-
quired to keep any portion of the surface material of streets,
roads and bridges in repair, but they shall remain subject
to all legal obligations imposed in original grants of loca-
tions"; and this provision appears in substantially the same
form in R. L., c. 112, § 44, and G. L., c. 161, § 89. By sec-
tion 26, P. S., c. 113, § 32, was repealed, subject to the
exception contained in section 28. Section 28 provided, in
part, that "for the term of twenty-five years from the tenth
day of June in the year eighteen hundred and ninety-seven
this act shall not apply to or affect the Boston Elevated
Railway Company or any railways now owned, leased, or
operated by it, . . . and the acts and parts of acts repealed
by section twenty-six hereof shall continue during said term
in full force so far as they relate thereto,"
The constitutionality of St. 1898, c. 578, § 11, was ques-
tioned and sustained in Springfield v. Springfield St. Ry. Co.,
182 Mass. 41, and Worcester v. Worcester, etc., St. Ry. Co.,
182 Mass. 49, and the decision in the latter case was affirmed
on a writ of error by the Supreme Com't of the United
States in Worcester v. St. Ry. Co., 196 U. S. 539. In those
cases the question raised by the respective cities was whether
30 OPINIONS OF THE ATTORNEY-GENERAL.
the statute, in so far as it abrogated conditions in grants of
location not original, violated the constitutional provision
against impairing the obligation of contracts. In the Spring-
field case the court held that the locations did not constitute
contracts, or, if they did, that they were of such a nature
that the Legislature could modify or annul them without
thereby violating the constitutional provision; that they
were analogous to licenses to run omnibuses and conveyed
no exclusive rights in the highways or streets in which they
were granted. In the Worcester case the court pointed out
that the imposition of an obligation in the charters of street
railways or the general laws to keep in repair some small
portions of the streets and bridges occupied by their tracks
and other obligations in the guise of restrictions upon grants
of locations, was a method of compelling the companies to
contribute to the burden imposed upon municipalities with
respect to roads and bridges, in the nature of indirect taxes,
and that St. 1898, c. 578, was enacted for the purpose of
freeing the companies, at least to a considerable extent,
from such indirect obligations and imposing certain new
taxes, of which the municipalities were given the benefit.
The Supreme Court of the United States on writ of error
sustained this decision, on the ground that the city had no
proprietary right in the property of the defendant or to
demand the continuance of an obligation to pave and repair
the streets, that the city was merely a political subdivision
of the state, and that the rights in question were not private
property beyond legislative control.
The effect of St. 1898, c. 578, by its terms (§§1 and 28),
was to leave the Boston Elevated Railway Company under
the same duty with regard to the repair of streets that
existed prior thereto, and this obligation continued by vir-
tue of the exception in section 28 until June 10, 1922. On
the other hand, of course, it was not required to pay the
new taxes imposed by sections 6 to 10, inclusive, of the act.
There is a serious question whether this exception of the
Boston Elevated Railway Company from the operation of
JAY R. BENTON, ATTORNEY-GENERAL. 31
the act did not make the whole statute unconstitutional.
The question is of a nature that makes a positive answer
difficult. A statute requiring street railway companies to
carry pupils of the public schools to and from school at
reduced rates, and excepting the Boston Elevated Railway
Company from its provisions, was held constitutional in
Commonwealth v. Interstate Consolidated St. Ry. Co., 187
Mass. 436. The court there pointed out that the situation
of the lines of the Boston Elevated Railway Company in the
midst of a dense population was so different from that of
other lines in the State that it might properly call for an
exemption from the law established for others. See also
Commonwealth v. Boston & Northern St. Ry. Co., 212 Mass.
82. The same consideration may lead to the conclusion
that there might properly be a special reason for continuing
to impose a duty on the company to keep in repair portions
of streets and bridges occupied by their tracks. I cannot
say, therefore, that St. 1898, c. 578, was unconstitutional
because the Boston Elevated Railway Company was ex-
cepted from its operation.
There is a further question whether St. 1898, c. 578, was
in violation of any right created by St. 1897, c. 500, § 10.
Two of my predecessors held that section 10 constituted a
contract between the Commonwealth and the Boston
Elevated Railway Company. II Op. Atty. Gen. 261, 426.
If so, it might well have been questioned whether the pro-
vision in that section, that during the period of twenty-five
years no burden, duty or obligation other than taxes or
excises should be imposed on the Boston Elevated Railway
Company which v/as not at the same time imposed by gen-
eral law on all street railway companies, did not have the
effect of making the provisions of St. 1898, c. 578, § 11,
applicable to the Boston Elevated Railway Company, not-
withstanding the provisions of sections 1 and 28 excepting
the Boston Elevated Railway Company from the operation
of that statute. But I am informed that no such contention
was made and that, in fact, the obligations of the previous
32 OPINIONS OF THE ATTORNEY-GENERAL.
law were always applied to and performed by the Boston
Elevated Railway Company. St. 1897, c. 500, § 10, was
expressly repealed by Spec. St. 1918, c. 159, § 17, so that
this possible constitutional question was thereby removed.
We come now directly to the question whether the pro-
posed act would be unconstitutional.
Certainly it violates no rights given or protected by Spec.
St. 1918, c. 159. There is no provision in that statute
affecting to the slightest extent the right of the Common-
wealth to impose any obligation on, or to change any obli-
gation of, the company with respect to the repair of streets
or the payment of taxes. Indeed, section 2 provides that
"nothing herein contained shall be held to affect the right
of the commonwealth or any subdivision thereof to tax the
company or its stockholders in the same manner and to
the same extent as if the company had continued to manage
and operate its own property."
The effect of section 1 of the proposed act is merely to
continue the obligations of the Boston Elevated Railway
Company imposed by P. S., c. 113, § 32, for the period of
public operation under Spec. St. 1918, c. 159, as they were
during the period of twenty-five years from June 10, 1897,
by virtue of the excepting provision in St. 1898, c. 578, § 28.
In my judgment, therefore, section 1 of the proposed act
would be constitutional, if enacted.
Section 3 of the proposed act, providing that during the
period of public operation the company shall not be re-
quired to make the returns and shall not have assessed upon
it the taxes imposed bj^ G. L., c. 63, §§ 61-66, exempts
the company from payment of the excise tax imposed by
those sections. This excise tax is the same tax which was
first imposed by St. 1898, c. 578, §§ 6-10. The effect of
this section, therefore, is merely to except the company
from the burdens as well as the benefits of the law first
appearing in St. 1898, c. 578. If section 1 of the proposed
act is constitutional, in my judgment, section 3 also would
be clearly constitutional.
JAY R. BENTON, ATTORNEY-GENERAL. 33
The provisions of section 2 are similar to those contained
in P. S., c. 113, § 33. I see nothing unconstitutional in
those provisions.
Pharmacist — Narcotic Drugs — Prescriptions —
Copies — Evidence.
Under G. L., c. 94, § 198, a prescription for narcotic drugs, when filled, must be
retained on file for at least two years by the druggist filling it, and no copy
of such prescription shall be made except for the purpose of record by said
druggist.
It follows that a druggist cannot be summoned to appear before a court and ordered
to bring with him the original prescription for narcotic drugs; but since the
prescription and the druggist's record are required by statute to be open at
aU. times to inspection by the officers of the Department of Public Health,
the Board of Registration in Pharmacy, the Board of Registration in Medi-
cine, authorized agents of said department and boards, and by the police
authorities and police officers of towns and cities, the statements and items
contained therein may be shown by the testimony of any observer thereof.
You request my opinion on the following questions : — ■ m°ssk)n?r°^"
Civil Service
1923
1. May a copy of a prescription or the original prescription for a nar- February 7.
cotic drug be taken from the files of a retail pharmacy by any of the
authorities specified in G. L., c. 94, § 198, for purposes of evidence in
the prosecution of a violator of the provisions of tliis chapter, in so far
as it relates to narcotic drugs?
2. May a druggist be permitted or required, under said section 198,
to make a copy of a prescription for narcotic drugs, filled by him in the
course of his business, and give the copy to any of the authorities specified
in said section, at their request, for purposes of evidence?
3. May a druggist who has in his possession a prescription for narcotic
drugs which has been fiUed by him in the course of his business, be sum-
moned to appear before a court and ordered to bring with him the original
prescription for narcotic drugs, which, according to said section 198,
"shall be retained on file for at least two years by the druggist filling it?"
The sale and distribution of narcotic drugs are governed
by the provisions of G. L., c. 94, §§ 197-217, inclusive. The
law pertaining to your question is contained in section 198,
the material portion of which is as follows : —
The prescription, when filled, shall show the date of filling and the
legal signature of the person filling it, written across the face of the pre-
34 OPINIONS OF THE ATTORNEY-GENERAL.
scription, together with the legal signature of the person receiving such
drug, and the prescription shall be retained on file for at least two years
by the druggist filling it. No prescription shall be filled except in the
manner indicated therein and at the time when it is received, and the
full quantity of each substance prescribed shall be given. No order or
prescription shall be either received for fiUing or filled more than five
days after its date of issue as indicated thereon. Each pharmacist who
fills a prescription for a narcotic drug shall securely attach to the con-
tainer thereof a label giving the name and address of the store where the
prescription is filled, the date of filling, the name of the person for whom
it is prescribed, the name of the physician, dentist or veterinarian who
issued it; and the narcotic drug so delivered shall always be kept in its
container until used. No prescription shall be refilled, nor shall a copy
of the same be made except for the purpose of record by the druggist
filling the same, such record to be open at all times to inspection by the
officers of the department of public health, the board of registration in
pharmacy, the board of registration in medicine, authorized agents of
said department and boards, and by the police authorities and police
officers of towns.
This statute is explicit, and in view of the express prohi-
bition contained therein I am of the opinion that no copy
of a prescription therein specified can properly be made and
used for the purpose outHned in your first and second ques-
tions, and I accordingly answer them in the negative.
Your third question presents other considerations, de-
pending upon whether or not the druggist in question is a
defendant or a witness in a case where another person is
defendant. In the former instance, he could not be obliged
to furnish evidence tending to incriminate him. The gen-
eral rule as to production of documents may be stated thus
(I Greenleaf on Evidence, 14th ed., § 560) : —
When the instrument or writing is in the hands or powerof theadverse
party, there are, in general, no means at law of compelling him to pro-
duce it; but the practice, in such cases, is, to give him or his attorney a
regular "notice to produce" the original. Not that, on proof of such
notice, he is compellable to give evidence against himself, but to lay foun-
dation for the introduction of secondaiy evidence of the contents of the
document or writing, by showing that the party has done all in his power
to produce the original.
JAY R. BENTON, ATTORNEY-GENERAL. 35
See also Wigmore on Evidence, §§ 1199-1210.
On the other hand, if a party is summoned as a witness in
an action against another person and it is desired to have
the witness produce certain documents, the procedure is to
issue a subpoena duces tecum directed to the person who has
them in his possession. See I Greenleaf on Evidence, 14th
ed., § 559; Wigmore on Evidence, §§ 1211, 1213.
But in the case stated by your inquiry the statute ex-
pressly provides that said prescription "shall be retained on
file for at least two years by the druggist filling it," and ex-
pressly prescribes and restricts the use of the same. It is
therefore possible that the druggist is, by reason of a privi-
lege, legally not compellable to produce the prescription,
which would be clearly an excuse for non-production.
In this connection the decision in the case of Common-
wealth V. Stevens, 155 Mass. 291, is significant. Like the
case under consideration, that case involved the produc-
tion of the register required by law to be kept by a drug-
gist, in which entries of sales of intoxicating liquors were
required to be made. In that case the court says : —
The rule that requires the production of the best evidence readily
obtainable is an important one. Where the contents of a book or written
document are needed in evidence, the book or writing should be produced,
when there is no good reason for the non-production of it; and if in the
present case the presiding justice had excluded the evidence, unless the
defendant had failed to produce the book on notice, we cannot say that
his ruling would have been erroneous.
On the other hand, this was not an ordinary writing or a public record.
It was a register required by the statute to be kept as a part of the busi-
ness done by the defendant under his license. St. 1887, c. 431, § 3. Its
form is prescribed by the statute. The pages are to be divided into eight
columns, each column with a prescribed heading, under which the entries
are to be made showing the required particulars in regard to each sale.
These particulars must be entered at the time of every sale. The statute
contemplates that this book shall all the tune be kept at the store of the
apothecary, and provides that it shall at all times be open to the inspec-
tion of certain officers mentioned. The witness was one of these officers,
and he was allowed to testify to the number of entries of sales within a
specified time. Neither the witness nor any other of the officers of the
36 OPINIONS OF THE ATTORNEY-GENERAL.
Commonwealth had a right to take the book from the defendant and bring
it to the court, and there would be some force in a suggestion that a notice
to the defendant to produce it to be used in evidence would have been
inconsistent with a proper regard for his duty to keep it where entries of
sales might immediately be made in it, so long as he continued to do busi-
ness under his license. The particulars of the entries in regard to the
sales were not offered in evidence, and the precise words written in the
register were not in question. It has been held that the language of a
license hanging on the wall of a liquor dealer's shop may be testified to
orally. Commonwealth v. Brown, 124 Mass. 318. This decision does not
cover the case at bar; but there is some ground for contending that the
number of sales found recorded in the register should be considered as a
fact in the mode of conducting the defendant's business, to be observed
by a police officer in the performance of his duty of inspecting the regis-
ter, and to be testified to like any other material fact apparent to an ob-
server. Such evidence was received without objection in Commonwealth
V. Perry, 148 Mass. 160. We are not convinced that there was such
error in this particular as to entitle the defendant to a new trial.
I am accordingly constrained to advise you that in either
case, namely, whether the druggist be a defendant or a
witness, he cannot be "summoned to appear before a court
and ordered to bring with him the original prescription for
narcotic drugs"; but since the prescription and the drug-
gist's record are required by statute to be open at all times
to inspection by the officers of the Department of Public
Health, the Board of Registration in Pharmacy, the Board
of Registration in Medicine, authorized agents of said de-
partment and boards, and by the police authorities and police
officers of towns and cities, the statements and items con-
tained therein may be shown by the testimony of any ob-
server thereof, which might well be the best evidence readilj^
obtainable.
jay r. benton, attorney-general. 37
Civil Service — Promotion — Probationary Period.
The rule providing that no person "shall be regarded as holding office or employ-
ment in the classified public service until he has served a probationary period
of six months," does not apply in the case of promotion from one grade of the
classified civil service to the next grade.
To the Com-
You request my opinion as to whether section 1 of Civil m?ssionM ^"
Civil Servic(
1923
February 8.
Service Rule 18 applies in the case of promotion from one '^1923'^^"'^
grade of the classified civil service to the next grade. I
assume that you are referring to the case of a person who
is in the classified public service.
Section 1 provides : —
No person appointed in the official or labor division shall be regarded
as holding office or employment in the classified public service until he
has served a probationary period of six months.
This rule is made under the provisions of G. L., c. 31,
§ 3, which reads, in part, as follows : —
The board shall, subject to the approval of the governor and council,
from time to time make rules and regulations . . . Such rules . . . shall
include provisions for the following:
(e) A period of probation before an appointment or emploj^ment is
made permanent; . . .
One of the purposes of the Civil Service Act is to ensure
tenure of office for an employee who has satisfactorily passed
his period of probation. If, under section 1 of Civil Service
Rule 18, a person in the classified public service lost his
status as a civil service employee upon promotion to the
next grade, and again became a probationer, the rule would
not afford the protection of permanent employment con-
templated by the statute. Under such a construction a
civil service employee could accept a promotion only at the
cost of his civil service standing, and the appointing officer
could rid himself of any employee in the classified public
service by the simple device of first promoting him, thus
making him a probationer, and then discharging him.
38
OPINIONS OF THE ATTORNEY-GENERAL.
Neither the statute nor the rule intends such result. The
statute, as well as the rules made thereunder, distinguishes
between an "appointment" and a "promotion." See
G. L., c. 31, §§ 3 and 18; Civil Service Rules 18 and 28;
McDonald v. Fire Engineers of Clinton, 242 Mass. 587.
I am therefore of the opinion that section 1 of Civil Ser-
vice Rule 18 does not apply to persons who are holding office
or employment in the classified public service and are pro-
moted from one grade of the classified civil service to the
next grade. The case of McDonald v. Fire Engineers of
Clinton, supra, which involved the status of a call fireman
appointed to the permanent force, has no bearing on this
question.
Listing Board of the City of Boston — City
Department,
The listing board of the city of Boston is not a city department, and is not sub-
ject to the ordinances of that city relative to printing and office supplies.
To the Police
Commissioner
of Boston.
1923
February 12.
You request my opinion on certain questions of law hav-
ing to do with the listing board of the city of Boston, created
by Gen. St. 1917, c. 29, § 7.
You ask, first, as to whether or not the said listing board
is obliged to have all its printing and stationery supplied
by the printing department of the city of Boston or whether
outside bids for the same can be called for. You ask, sec-
ond, as to whether the said listing board may legally con-
tract for other supplies without advertising for the same in
accordance with the provisions of the city charter governing
department heads, as found in St. 1909, c. 486, § 30.
In your communication you call my attention to section 1
of chapter 26 of the Revised Ordinances of the City of Bos-
ton, which provides that the printing department of the
city of Boston shall supply all printing, stationery and
office supplies used by any board, commission or depart-
ment for which the said city is required by law to furnish
JAY R. BENTON, ATTORNEY-GENERAL. 39
such supplies; and to section 16 of chapter 3 of said Ordi-
nances, which provides that every officer in charge of a
department requiring any printing, binding, stationery or
other office supplies shall obtain the same from the said
superintendent of printing, by requisition, on blanks to be
prepared by the superintendent.
The answer to both your questions depends upon whether
the listing board is a "department," within the meaning of
the statute and of the ordinances above quoted.
The listing board is a board established by Gen. St. 1917,
c. 29, § 7, which reads as follows: —
In Boston there shall be a listing board composed of the police com-
missioner of the city and one member of the board of election commis-
sioners, who shall annually be appointed by the mayor, without confirma-
tion by the city council, for the term of one year and who shall belong to
that one of the two leading political parties of which the police commis-
sioner is not a member. In case of disagreement between the two mem-
bers of said board, the chief justice of the municipal court of the city of
Boston, or, in case of his disability, the senior justice of said court who is
not disabled, shall, for the purpose of settling such disagreement, be a
member of said board and shall preside and cast the deciding vote in
case of a tie.
No authority is given to the city to review its action or
to add to or subtract from the powers and duties of the
listing board. Section 1 of chapter 2 of the Revised Ordi-
nances provides that "the mayor shall appoint heads of
departments and members of municipal boards and fill
vacancies therein in the manner provided by statute." It
would seem that the departments contemplated by the
other sections of the Revised Ordinances, to which you
refer, are those which come within the purview of section 1
of chapter 2 of the Ordinances, and, obviously, the listing
board does not.
Furthermore, this is a board created by statute, of which
the Police Commissioner for the City of Boston is one
member. As he is a State official, the city government
cannot impose on him duties in addition to those imposed
40
OPINIONS OF THE ATTORNEY-GENERAL.
by the acts creating his office, and acts in addition to and
in amendment thereof. V Op. Atty. Gen. 394. The fact
that the mayor has the power of appointment, within a
very restricted field, of one member of the board has no
significance. Mahoney v. Boston, 171 Mass. 427, 429.
The same construction must of necessity be given to the
word "department" in St. 1909, c. 486, § 30. The Hsting
board, as established, is not a department of the city nor
one of its governing boards. Phillips v. Boston, 150 Mass.
491, 494. I therefore advise you that the listing board
does not come Mdthin the provisions of that statute nor
within the provisions of section 1 of chapter 26 or of section
16 of chapter 3 of the Revised Ordinances of the City of
Boston.
To the Com-
missioner of
Corporations
and Taxation.
1923
February 12.
Income Tax Act — Interpretation.
G. L., c. 62, § 1 (a), Third, excepting from the income tax interest from "loans
secured exclusively by mortgage of real estate, taxable as real estate, situated
in the commonwealth," should be construed as providing for the exemption
of interest from loans secured by mortgage exclusively of real estate, taxable
as real estate, situated in the Commonwealth.
Interest from a mortgage note, or an issue of mortgage bonds, endorsed by another
person and secured by a mortgage of real estate situated and taxed in Massa-
chusetts, is exempt from taxation by virtue of G. L., c. 62, § 1 (a), Third.
You ask my opinion as to the proper interpretation of
G. L., c. 62, § 1, subsection (a), cl. Third. The material
portion of said section 1 is as follows : —
Section 1. Income of the classes described in subsections (a), (6), (c)
and (e) received by any inhabitant of the commonwealth during the pre-
ceding calendar year, shall be taxed at the rate of six per cent per annum.
(a) Interest from bonds, notes, money at interest and all debts due
the person to be taxed, except from:
Third, Loans secured exclusively by mortgage of real estate, taxable
as real estate, situated in the commonwealth, to an amount not exceed-
ing the assessed value of the mortgaged real estate less the amount of all
prior mortgages.
You state the cases of a mortgage note and of an issue of
mortgage bonds, each secured by real estate situated and
JAY R. BENTON, ATTORNEY-GENERAL. 41
taxed in Massachusetts to an amount greater than the
face of the mortgage plus all prior mortgages, but with the
addition of an endorsement of another person on the mort-
gage note or mortgage bonds. You ask whether the fact
of such endorsement takes the interest out of the exempted
class for the reason that the loan is not then secured "ex-
clusively by mortgage of real estate."
As a general proposition, the term "securities" embraces
promissory notes. Griggs v. Moors, 168 Mass. 354, 361;
Jennings v. Davis, 31 Conn. 134; Wagrier v. Scherer, 89
N. Y. App. Div. 202. Broadly speaking, the obligation of
another person may be security for a loan, and such obli-
gation may be created or evidenced as well by endorsement
of a note given by the person to whom the loan is made as
by the furnishing of a separate promissory note. On the
other hand, when we speak of a "secured note" we generally
mean a note with collateral security, and the endorsement
of a note by a third person is not collateral security for the
note. Cf. Boston Railroad Holding Co. v. Commonwealth,
215 Mass. 493, 497.
In order to determine the meaning of the words used in
G. L., c. 62, § 1, (a). Third, reference must be made to the
statutes as they existed prior to the enactment of the in-
come tax law as well as to other parts of the present tax
laws.
By St. 1881, c. 304, §§ 1-3, provision was made for taxing
separately as real estate the interest of a mortgagee, and
by section 6 of the same statute "loans on mortgages of
real estate, taxable as real estate," except the excess of
such loans above the assessed value of the mortgaged real
estate, were exempted from taxation. The chapter is en-
titled "An Act relieving property from double taxation in
certain cases," and the object of the statute was to avoid
double taxation in the cases to which it applied. See Knight
V. Boston, 159 Mass. 551. The statute was construed to
apply only to cases where the mortgaged security was
wholly real estate situated wholly in Massachusetts. Brooks
42 OPINIONS OF THE ATTORNEY-GENERAL.
V. West Springfield, 193 Mass. 190, 194. In that case the
court held that a mortgage which included, besides real
estate in the Commonwealth, real estate in other States and
also personal property, did not come within the terms of
the statute, since the statute granted an exemption only in
cases where all the security was taxable as real estate in
Massachusetts, and on provision was made for apportion-
ment when only a part of the security was so taxable.
Re-enactments of St. 1881, c. 304, §§ 1-3 and 6, appear
in P. S., c. 11, §§ 14-16 and 4, R. L., c. 12, §§ 16-18 and 4,
St. 1909, c. 490, pt. I, §§ 16-18 and 4, and G. L., c. 59,
§§ 12-14 and 4, respectively.
The income tax law of 1916 (Gen. St. 1916, c. 269) con-
tained in section 2 (a), Third, the exemption which is sub-
stantially re-enacted in G. L., c. 62, § 1 (a). Third. It
made a change in the previous law, the result of which was
that in cases where interest was not taxable loans were
exempt from taxation, as before, if they were secured by
mortgage of real estate, taxable as real estate, within the
interpretation of those words as given in Brooks v. West
Springfield, while in cases where the interest was taxable
the exemption was governed by the provision of the clause
under consideration. The purpose of this clause clearly
was to continue and make applicable to interest from loans
the same exemption of which the loans themselves had
previously had the benefit. In passing, it should be noted
that in the report of the special commission appointed by
Res. 1915, c. 134, the clause read, — "3. Loans on mort-
gages of taxable real estate situated within this common-
wealth to an amount not exceeding the assessed value of the
mortgaged real estate," and that in the report of the House
Committee on Taxation (House Document, No. 2073) the
clause was changed to read, — "Third: Loans secured ex-
clusively by mortgages of real estate, taxable as real estate,
situated within the commonwealth, to an amount not ex-
ceeding the assessed value of the mortgaged real estate."
Under the provision exempting from taxation loans secured
JAY R. BENTON, ATTORNEY-GENERAL. 43
by mortgage of real estate, taxable as real estate, it was held
in Brooks v. West Springfield, as stated above, that the
mortgaged property must consist of real estate exclusively,
and that the real estate must lie wholly in the Common-
wealth. The ground of the decision was that the statute
in terms applied only to domestic real estate, and that the
Legislature had not provided for an apportionment when
other property was included in the mortgage. The words
"loan on mortgage of real estate, taxable as real estate" are
readily susceptible of the interpretation that the mortgaged
property shall consist of real estate alone, and that it must
be taxable as such in Massachusetts, but they do not justify
a construction which would make them inapplicable to loans
on mortgages exclusively of Massachusetts real estate, where
the mortgage note is endorsed by a third person, and there
is no suggestion in Brooks v. M^est Springfield or any other
case that such an implication should be made. To exclude
such loans from the exemption would be to impose double
taxation in the very cases which the statute was intended
to provide for.
The provision in G. L., c. 62, § 1 (a), Third, was evidently,
as I have said, made for the purpose of giving an exemption
to interest on loans co-extensive -with the exemption previ-
ously given to the loans themselves. It is reasonable to
suppose that the changes in language by the insertion of
the word "exclusively" and the addition of the words
"situated in the commonwealth" were for the purpose of
expressing in the statute the result of the decision in Brooks
V. West Springfield, the word "exclusively" being intended
to exclude cases where the mortgage covered other property
as well as real estate, and the phrase "situated in the com-
monwealth" to confine the exemption to cases where the
real estate was wholly in Massachusetts. In other words,
it seems probable that what the Legislature intended would
be more precisely expressed by changing the location of the
word "exclusively" so that the phrase would be "loans
secured by mortgage exclusively of real estate, taxable as
44
OPINIONS OF THE ATTORNEY-GENERAL.
real estate, situated in the commonwealth/' etc. In view
of the manifest purpose for which the statute was passed,
it is my opinion that the clause should be construed in the
way which I have indicated, and that each of the two cases
you have stated comes within the exemption.
Constitutional Law — Attorney General
OF THE Bar.
Member
The office of attorney general is recognized by, and provided for in, the Constitution.
It is not within the province of the Legislature to add to or subtract from the
qualifications for the office of attorney general required by the Constitution.
The qualifications for the office of attorney general established by the Constitu-
tion need not be established by express provision; they may be implied.
The Constitution contains the implied qualification that the attorney general
shall be a member of the bar.
The Legislature may pass an act which merely expresses what in the Constitution
is implied.
To the Joint
Committee on
the Judiciary.
1923
February 15.
You request my opinion whether it is within the province
of the Legislature to pass a law requiring the attorney gen-
eral to be a member of the bar, or whether an amendment
to the Constitution would be necessary to bring about that
result.
The office of attorney general was not created by the
Constitution. The first appointment of an attorney general
in Massachusetts was in 1680. The office was recognized
as already in existence by I Prov. Laws, 1693-4, c. 3, § 12.
The office was recognized by c. II, § I, art. IX, of the Con-
stitution as originally adopted in 1780. By Mass. Const.
Amend. XVII it was provided that the attornej" general,
with other State officers, should be elected annually (now
biennially by Mass. Const. Amend. LXIV). Mass. Const.
Amend. XVII contains the following provision with respect
to qualification : —
No person shall be eligible to either of said offices unless he shall have
been an inhabitant of this commonwealth five years next preceding his
election or appointment.
JAY R. BENTON, ATTORNEY-GENERAL. 45
By that amendment the tenure of the office is secured and
its terms defined. At least since the adoption of Mass.
Const. Amend. XVII, therefore, the office of attorney general
is an office provided for in the Constitution, whose tenure,
mode of election and qualifications are prescribed by the
Constitution.
Where the tenure, the mode of election or appointment,
and qualifications of an office are prescribed by the Consti-
tution, the Legislature cannot change them unless the Con-
stitution gives the Legislature authority to do so. Tajt v.
Adams, 3 Gray, 126, 130; Kinneen v. Wells, 144 Mass. 497;
Graham v. Roberts, 200 Mass. 152, 157; Attorney General
V. Tufts, 239 Mass. 458, 480; Attorneij General v. Pelletier,
240 Mass. 264; Opinion of the Justices, 165 Mass. 599, 601;
Opinion of the Justices, 240 Mass. 611, 614.
The Constitution does not give the Legislature authority
to make such changes with respect to the office of attorney
general. Since 1780 the powers and duties of the office
have been declared and defined to some extent by statute
(see G. L., c. 12, §§ 1-11). But the authority so to act is
not to be confused with authority to make changes in the
quahfications for office.
Article IX of the Declaration of Rights provides : —
All elections ought to be free; and all the inhabitants of this common-
wealth, having such qualifications as they shall establish by their frame
of government, have an equal right to elect officers, and to be elected,
for public emplojonents.
This article in substance declares that the right of electors
and of persons to be elected for public office shall be limited
only by such qualifications as are prescribed in the Consti-
tution. Brown v. Russell, 166 Mass. 14, 21; Opinion of
the Justices, 160 Mass. 586. It applies to the office of
attorney general, since the qualifications of that office are
established by the frame of government.
I am therefore of the opinion that it is not within the
province of the Legislature to pass any law which would
46 OPINIONS OF THE ATTORNEY-GENERAL.
add to or subtract from the qualifications for the office of
attorney general required by the Constitution.
It is necessary now to consider whether the Constitution
requires that the attorney general shall be a member of the
bar.
Qualifications for office established by the Constitution
need not be established by express provision; they may be
implied. Striking instances of such implication are found
in Opinion of the Justices, 107 Mass. 604, and Opinion of
the Justices, 165 Mass. 599, where the court held, regarding
justices of the peace and notaries public, respectively, that
the Constitution implied a qualification that the incumbent
be a man, and precluded the appointment of a woman to
the office.
In the former case the justices said: —
By the Constitution of the Commonwealth, the office of justice of the
peace is a judicial office and must be exercised by the officer in person,
and a woman, whether married or unmarried, cannot be appointed to
such an office. The law of Massachusetts at the time of the adoption
of the Constitution, the whole frame and purport of the instrument itself,
and the universal understanding and unbroken practical construction for
the greater part of a century afterwards, all support this conclusion, and
are inconsistent with any other. It follows that, if a woman should be
formally appointed and commissioned as a justice of the peace, she would
have no constitutional or legal authority to exercise any of the functions
appertaining to that office.
In the latter case the court gave the opinion that it was
not within the constitutional power of the Legislature to
authorize the appointment of women as notaries public.
In the course of the opinion the justices said : —
The Constitution did not create the office of notary public. It was
an office known to the Roman law, and has existed in all or nearly all
Christian countries for many centuries. The duties of the office in this
Commonwealth are in part prescribed by statute, and in part are such as
by usage notaries public for a long time have been accustomed to perform,
and the international character and relations of notaries public are im-
portant. . . .
JAY R. BENTON, ATTORNEY-GENERAL. 47
. . . The question in every case is of the meaning of the Constitution,
and in determining this, the history and nature of the particular office and
the usages of this and other States and countries with regard to the office at
the time of the adoption of the Constitution must he considered. . . .
Where an office is created by statute, the tenure, the mode of appoint-
ment, the qualifications required, the duties of the office, and the com-
pensation, are wholly within the control of the Legislature, unless there
is some limitation put upon the Legislature by the Constitution; and the
statute creating the office may be altered or repealed by the Legislature
at any time. But if the tenure of an office and the mode of appointment
are prescribed by the Constitution, the Legislature cannot change them,
unless the Constitution gives the Legislature authority to do so. If the
quaUfications for the office are prescribed by the Constitution, the Legis-
lature cannot change them. If the qualifications are not prescribed by
the Constitution, although the tenure and mode of appointment are,
there has been some question whether the Legislature can prescribe the
qualifications, but the solution of this question in any particular case
depends upon the construction of the particular clauses of the Consti-
tution involved, as well as of the whole frame and purport of the Con-
stitution. . . .
... It was the nature of the office of justice of the peace, and the
usage that allways had prevailed in making appointments to that office,
that led the Justices to advise that it could not have been the intention
of the Constitution that women should be appointed justices of the
peace. 107 Mass. 604. In our opinion, the same considerations apply
to the office of notary public.
The same considerations apply even more strongly to the
question you have submitted, as will appear from an ex-
amination of the history and nature of the offices of attor-
ney and attorney general, in Massachusetts and elsewhere,
and the usages with regard to them in 1780.
Charles Warren, in his "History of the American Bar,"
gives the following information as to the development and
significance of the title of "attorney" in Massachusetts dur-
ing the colonial period.
As early as 1649 there existed "attorneys" of some kind
in the Massachusetts Bay Colony, for they are mentioned
in the records of the General Court for that year. They
probably appeared by special powers.
In 1686 the Superior Court was created under the new
48 OPINIONS OF THE ATTORNEY-GENERAL.
Governor, Sir Edmund Andros, and attorneys were obliged,
upon admission to the bar, to take oath.
In 1701 the practice of the law became first dignified as a
regular profession through the requirement by statute of
an oath for all attorneys admitted by the courts. By this
oath, since the time of Lord Holt, the attorney was pledged
to conduct himself "in the office of an attorney within the
courts" according to the best of his knowledge and discre-
tion, and with all good fidelity, as well to the courts as to
his clients. Robinson's Case, 131 Mass. 376, 379.
At first no special qualifications and no definite term of
study appear to have been required for admission to the
bar; but in 17G1 the bar prescribed a term of seven years'
probation — three of preliminary study, two of practice as
attorney in the Inferior Court, and two of practice as at-
torney in the Superior Court.
In 1781 the first order relating to lawyers, made by the
court after Massachusetts became a State, dealt with the
method of creating barristers from among the practicing
attorneys.
In 1806 the Supreme Judicial Court adopted the follow-
ing rule :
Ordered — First, no attorney shall do the business of a counsellor un-
less he shall have been made or admitted as such by the Court.
Second, all attorneys of this Court who have been admitted three years
before the sitting of this Court shall be and hereby are made counsellors
and are entitled to all the rights and privileges of such.
Tlurd, no attorney or counsellor shall hereafter be admitted without
a previous examination.
In short, at the time of the use of the term "attorney
general" in the Constitution of Massachusetts, in 1780, the
word "attorney" had come to have a specific and well-
recognized meaning. Whether we examine the history of
England or that of our own colonial period, we find that the
word signified a man entitled to engage in the practice of
law before the courts — in other words, a "member of the
JAY K. BENTON, ATTORNEY-GENERAL. 49
bar"; and that admission to the bar, for a long time prior
to 1780, entailed a formal presentation of the candidate,
the administering of an oath, and compliance with certain
educational requirements.
Likewise by 1780 the phrase "attorney general" had come
to designate the incumbent of a public office which possessed
well-recognized characteristics. The office of attornej^
general is of ancient origin, and its powers and duties were
defined and prescribed by the common law. Common-
wealth V. Kozlowsky, 238 Mass. 379, 385; State v. Ehrlick,
65 W. Va. 700, 702. In England the attorney general was
the chief legal representative of the crown, and the official
head of the bar. 3 Bl. Com. 26, 27; 13 111. Law Rev. 602.
In Massachusetts, in colonial times, the attorney general
was the chief law officer of the province, and his powers and
duties were largely such as attached to it at common law.
Commonwealth v. Kozlowsky, 238 Mass. 379, 385, 386;
VI Op. Atty. Gen. 138. So far as it has been possible to
ascertain, every provincial attorney general, from Anthony
Checkley in 1680 to Robert Treat Paine, the last of the
provincial attorneys general, appears to have been, prior
to his elevation to that office, an "attorney" qualified to
practice in the provincial courts.
The phrase "attorney general" in Mass. Const., c. II,
§ I, art. IX, must be taken to have been used in its natural,
long-established sense; and to include within itself those
same incidents, characteristics and qualifications which the
phrase imported at common law.
This construction is supported not only by history and
usage, but by direct implication from the use of the word
"attorney" in the title of the office. The attorney general,
as the name of his office implies, is the chief law officer of
the Commonwealth. VI Op. Atty. Gen. 138; Dear-
horn v. Ames, 8 Gray, 1, 15; State v. Robinson, 101 Minn.
277, 288. The qualification that he should be a member of
the bar is inherent in the office and required by the duties
which he has to perform.
50 OPINIONS OF THE ATTOKNEY-GENERAL.
In Opinion of the Justices, 240 Mass. 611, 614, the court
stated their opinion that a bill providing that the several
district attornej^s should be members of the bar of the Com-
monwealth, if enacted, would be constitutional. This
opinion contains a strong intimation, applicable as well to
the office of attorney general, that the use of the word
"attorney" in the title of the office establishes an implied
(jualification that the incumbent must be a member of the
bar. On this point the court said: —
There is a considerable body of authority which holds that the use
of the word "attorney" in the title of the office carries with it the mean-
ing that tiie incumbent must be a member of the bar. It has been said
that "To be a district attorney, he must be a lawyer. He is not an attor-
ney in fact. He must be an attorney at law. The name of the officer
implies it. He is the attorney of the state in a certain district, to dis-
tinguish him from an attorney general." State v. Russell, 83 Wis. 330,
332, 333. People v. Maij, 3 Mich. 598. Enge v. Cass, 28 No. Dak. 219.
Danforth v. Egan, 23 So. Dak. 43.
It is therefore my opinion that the Constitution itself
contains the implied qualification that the attorney general
must be a member of the bar, and that an amendment to
the Constitution would not be necessary to fix such qualifi-
cation.
I have not as yet directly answered your question whether
it is within the province of the Legislature to pass a law re-
quiring the attorney general to be a member of the bar. I
have stated that in my opinion the Constitution itself con-
tains such a requirement.
By the Constitution (c. I, § I, art. IV) the Legislature is
given full power to make all manner of wholesome and rea-
sonable laws not repugnant or contrary to the Constitution,
and to set forth the duties, powers and limits of the several
civil and military officers of the Commonwealth, not repug-
nant or contrary to the Constitution. The legislative
branch of the government is the repository of legislative
power, and may make any law whatever, except in so far
JAY R. BENTON, ATTORNEY-GENERAL. 51
as it is restrained by the provisions of the Constitution
(where no question is involved concerning the exercise of
powers granted to the Federal government by the Constitu-
tion of the United States). Stoughton v. Baker, 4 Mass.
522, 529; Commonwealth v. Alger, 7 Cush. 53, 101. The law
proposed clearly would not be repugnant or contrary to
the Constitution but, as I have shown, would be in exact
accordance with its provisions. It is true, as the court has
stated, that 'Vhere qualifications of voters or officers are
fixed by the Constitution the Legislature cannot add to or
subtract from them." Opinion of the Justices, 240 Mass.
611, 614; Kinneen v. Wells, 144 Mass. 497. But this rule
is not applicable to a legislative act which does not add to
or subtract from a constitutional requirement, but merely
expresses what in the Constitution is implied. So in Opin-
ion of the Justices, 240 Mass. 601, the court gave their
opinion that it would be constitutionally competent for the
General Court to enact legislation declaring women eligible
to hold any public office within the Commonwealth, al-
though such legislation would apply to offices the qualifica-
tions for which are determined by the Constitution. I see
nothing in the proposed act inconsistent with article XXX
of the Declaration of Rights.
Accordingly, it is my opinion, and I advise you, that the
proposed legislation, if enacted, would not be unconstitu-
tional, and that therefore it is within the province of the
Legislature to pass such a law.
52
OPINIONS OF THE ATTORNEY-GENERAL.
Constitutional Law — Interstate Commerce — Cor-
respondence School — Agency.
An institution chartered under the laws of a foreign State may come into Massa-
chusetts for the purpose of enrolling students here fctr instruction by corre-
spondence, and may grant such degree as it is authorized to grant under the
laws of the State from which it receives its charter; and accordingly a State
statute which makes it a condition precedent to a foreign corporation engaging
in this branch of interstate commerce to obtain what practically amounts to
a license to transact such business is unconstitutional, as a burden and re-
striction upon interstate commerce. But personal instruction within the
confines of this Commonwealth by a resident agent of such foreign corporation
is not interstate commerce, and is accordingly within the prohibition contained
in G. L., c. 266, § 89.
A resident agent of a foreign correspondence school, who by advertisement holds
himself out as empowered to grant a degree, violates G. L., c. 266, § 89.
To the Com-
missioner of
Education.
1923
February 23.
You request my opinion on the following questions : —
It appears that a certain correspondence school, named
the American Extension University, has been advertising
the fact that a degree is awarded on completion of the pre-
scribed course. Is this action on the part of this school a
violation of G. L., c. 266, § 89?
Under what conditions can an institution chartered under
the laws of a foreign State come into Massachusetts for the
purpose of enrolling students here, either for personal in-
struction within the confines of this State or for instruction
by correspondence, and thus grant a degree for the com-
pletion of the required course of study?
Can the American Extension University be held respon-
sible for the acts of its alleged agent here?
Can its alleged agent here hold himself out as empowered
to grant a degree without mentioning the name of the in-
stitution chartered to grant degrees?
The statutory provisions governing correspondence schools
are contained in G. L., c. 93, §§ 19-23, inclusive. Section
22 prescribes as follows : —
The department of education may establish rules and regulations gov-
erning correspondence schools.
JAY R. BENTON, ATTORNEY-GENERAL. 53
Section 23 provides: —
Whoever violates any provision of law relating to correspondence
schools for which no penalty is provided, or of sections twenty and twenty-
one or of any rule or regulation estabUshed under section twenty-two, shall
be punished by a fine of not more than five hundred dollars.
Under the authority conferred by section 22, the Depart-
ment of Education formulated and published certain rules
and regulations, among which is the following : —
Every person, firm, association or corporation doing business in this
Commonwealth as a correspondence school shall report to the Depart-
ment of Education, on or before August thirty-first of each year, on blanks
to be obtained from the Department on request, the following facts: —
1. Name of the school, and of organization conducting the same.
2. Headquarters. (Give address, whether outside or inside of Massa-
chusetts.)
3. Management of the school, whether by individual, co-partnership
or corporation.
4. Names of officers and directors. . . .
5. Location and designation of offices, if any, in Massachusetts.
6. Name and address of resident agent or representative, if any, in
Massachusetts.
7. List of correspondence courses advertised and offered in Massa-
chusetts . . . with copies of advertisements inserted in magazines or
newspapers published or circulated in Massachusetts.
8. Number of persons enrolled in each course or separately offered part
thereof, in Massachusetts, for the twelve months prior to July 1st pre-
ceding the date of this report (but if the business year of the school closes
at some other date, then for the last business year) ....
9. Number of persons receiving certificates or other evidence as to
completion of courses or separate parts thereof, during the twelve months
prior to July 1 preceding the date of this report, or for the last business
year. . . .
10. Brief description of samples of advertising literature circulated in
Massachusetts (other than appearing in newspapers and magazines) , filed
with this report.
Date of this report. Name, office, and address of person making this
report.
In accordance with this rule, a report was filed on De-
cember 9, 1922, signed "Ralph Culver Bennett, 472 Boyl-
54 OPINIONS OF THE ATTORNEY-GENERAL.
ston Street, Boston, Massachusetts. Telephone Back Bay
7598," in which it appears that the American Extension
University is a corporation chartered under the laws of
California, with headquarters in the Stimson Building, Los
Angeles, California, its office in Massachusetts being at
472 Boylston Street, Boston, Mass., and its resident agent
or representative in Massachusetts being Professor Ralph
Culver Bennett, D.C.L., LL.D. Said report also states
that the only advertisement used is the one set forth in
full in the answer to question No. 7, as follows: —
Solely a Law Course.
Only advertisement used is as follows:
"Law professor, D.C.L. Yale, has complete law correspondence course.
Anyone may enroll. No books required. Time payments. Invaluable
business training, complete Bar preparation, and degree. Consult Pro-
fessor R. C. Bennett, D.C.L., LL.D., 472 Boylston St., Boston. Tele-
phone Back Bay 7598."
You state that this advertisement has appeared in street
cars.
It also appears that in answer to question No. 8 of the
report required of correspondence schools, supra, the fol-
lowing reply was given : —
Have been located here in Boston only since September 1, 1922.
Since that date I have enrolled four (4) students in Massachusetts,
(only four) and in Law — the only course given by the American Exten-
sion University. However, 21 are now studying law in Massachusetts
under my direction. I am an attorney-at-law of Illinois and of Texas.
Have been a teacher and professor of law and am ex-Asst. State's Attorney
for Cook County, Illinois.
G. L., c. 266, § 89, prescribes as follows: —
Whoever, in a book, pamphlet, circular, advertisement or advertising
sign, or by a pretended written certificate or diploma, or otherwise in
writing, knowingly and falsely pretends to have been an officer or teacher,
or to be a graduate or to hold any degree, of a college or other educational
institution of this commonwealth or elsewhere, which is authorized to
grant degrees, or of a public school of this commonwealth, and whoever.
1
JAY R. BENTON, ATTORNEY-GENERAL. 55
without the authority of a special act of the general court granting the
power to give degrees, offers or grants degrees as a school, college or as a
private individual, alone or associated with others, shall be punished by a
fine of not more than one thousand dollars or by imprisonment for not
more than one year, or both. Any individual, school, association, cor-
jioration or institution of learning, not having power to confer degrees
under a special act of the general court, using the designation of "univer-
sit}'^" or "college" shall be punished by a fine of one thousand dollars;
but this shall not apply to any educational institution whose name on
July ninth, nineteen hundred and nineteen, included the word "univer-
sity" or "college."
A literal interpretation of this statute would seem to
forbid any individual, school, association, corporation or
institution of learning not having the power to confer de-
grees under a special act of the General Court of this Com-
monwealth from offering or granting degrees as a school,
college or private individual, and would also seem by its
terms to prohibit the use of the designation of "university"
or "college" by any individual, school, association, corpora-
tion or institution of learning not having the power to con-
fer degrees under a special act of the General Court. It
appears from the report filed by the agent of the American
Extension University, supra, that the university is a cor-
poration chartered under the laws of the State of California,
and, although the power to grant degrees is not referred to
therein, nevertheless, in the booklet apparently prepared
by said university and distributed through its agent, appears
the following statement on page 1 : —
The American Extension University is chartered under the laws of the
State of California, as an educational institution, and is authorized to
give instruction either to resident students or by correspondence, and to
confer all appropriate honors and degrees.
The Extension Law Department of the University gives a complete
course in law by correspondence, leading to the degree of bachelor of laws,
— LL.B.
The Supreme Court of the United States has decided, in
the case of International Textbook Co. v. Pigg, 217 U. S. 91,
56 OPINIONS OF THE ATTORNEY-GENERAL.
that intercourse or communication between persons in dif-
ferent States, through the mails and otherwise, and relat-
ing to matters of regular, continuous business, such as
teaching by correspondence, and the making of contracts
relating to the transportation thereof, is commerce among
the States, within the commerce clause of the Federal Con-
stitution, and accordingly a State statute which makes it a
condition precedent to a foreign corporation engaging in
this legitimate branch of interstate commerce to obtain
what practically amounts to a Ucense to transact such busi-
ness is a burden and restriction upon interstate commerce,
and as such is unconstitutional.
I am accordingly of the opinion that an institution char-
tered under the laws of a foreign State may come into Massa-
chusetts for the purpose of enrolling students here for in-
struction by correspondence, and may grant such degree as
it is authorized to grant, under the laws of the State from
which it receives its charter, for the completion of the re-
quired course of study; but I am also of the opinion that
personal instruction within the confines of this State by a
resident agent does not come within the principle laid down
in the case of International Textbook Co. v. Pigg, supra, and
accordingly is within the prohibition contained in G. L.,
c. 266, § 89.
As to how far the American Extension University may
be held responsible for the acts of its alleged agent here, it
would seem that the ordinary principles of the law of agency
would apply, namely, that for any act committed by such
agent within the actual or ostensible scope of his employ-
ment the principal could be held liable. Inasmuch as the
advertisement appearing in the answer to question No. 7
of the report of correspondence schools, supra, does not
mention the American Extension University, and the answer
to question No. 8 of said report sets forth that four students
in Massachusetts have been registered in the course, while
twenty-one are studying law in Massachusetts under the
direction of the aforesaid agent, I am of the opinion that
JAY R. BENTON, ATTORNEY-GENERAL. 57
this method of advertising constitutes a violation of G. L.,
c. 266, § 89, inasmuch as it cannot be questioned but that
the information conveyed to the average reader by said
advertisement would entitle such reader to consider that
said alleged agent holds himself out as empowered to grant
a degree, which would be a violation of the statute.
In the case of Commonwealth v. New England College of
Chiropractic, 221 Mass. 190, in construing the statute under
consideration, the court says : —
Its obvious purpose is to suppress the kind of deceit which arises from
the pretence of power to grant academic degrees, and to protect the pub-
lic from the evils likely to flow from that variety of misrepresentation and
imposition. ... It aims to ensure to the people of the Commonwealth
freedom from deception, when dealing with those who put forward pro-
fessions of educational achievement such as ordinarily is accompanied
by a collegiate degree from an institution authorized to grant it and to
make certain that those who use such symbols have had the opportunity
of being trained according to prevailing standards in some school of
recognized standing, under teachers of reputation for learning. . . .
The statute should be interpreted in the light of its design to effectuate
its purpose so far as the words used reasonably construed permit of this
result.
Eminent Domain — Notice of Taking to Parties in
Interest — Confirmatory Deed.
Where land is taken by the Commonwealth by eminent domain, it is the duty of
the board of officers who have made the taking to use reasonable diligence
to ascertain the owners of the land taken, and to give notice of such taking
to each and every owner thus ascertained.
Failure on the part of such board of officers to give the required notice to owners
of land taken by eminent domain does not invalidate a taking.
A confirmatory deed given by the owner of land taken by eminent domain should
include, among other requisites, a warranty to the extent of the amount of
the award, and a provision that it is in confirmation, and not in derogation,
of the rights acquired.
You request my opinion on certain questions arising from '^9 ^^^ ^om-
i- -^ ^ ^ o missioner of
the taking or contemplated taking by your department of conservation.
what you term "low value land," and I shall answer each F«bniary24.
inquiry in order.
58 OPINIONS OF THE ATTORNEY-GENERAL.
1. How far must this department proceed in attempting to find out
the ownership of lands taken, and in determining the status of the title
of parties known to have an interest in the land taken or who claim to
have an interest?
So far as your duty under the law is concerned, it is set
forth in G. L., c. 79, § 8, which reads, in part, as follows: —
Immediately after the right to damages becomes vested, the board of
officers who have made a taking under this chapter shall give notice
thereof to every person whose property has been taken or who is other-
wise entitled to damages on account of such taking.
It is apparent, therefore, that it is your duty to use reason-
able diligence to ascertain the owners of the land taken, and
it might well be that information from the local assessors
would be sufficient, as they, presumably, keep themselves
informed on matters of such ownership. Where, however,
there is a question of ownership, and conflicting claims, to
the knowledge of your department, it is your duty to have
such search of title made as will in each case justify the
award you make.
2. Is it encumbent upon this department to notify each and every
owner of land taken, when such owners are known?
To that question my answer is *'Yes." See Wright v.
Lyons, 224 Mass. 167.
3. After a taking has been made, is a release from an owner to the
Commonwealth sufficient or is a warranty deed essential in clearing in-
terior holdings?
To that question I reply that the ordinary release is in-
sufficient, but that the deed taken should include, among its
other requisites, a warranty to the extent of the amount of
the award and a provision that it is in confirmation, and not
in derogation, of the rights acquired by the taking.
JAY R. BENTON, ATTORNEY-GENERAL. 59
4. After a taking has been placed on record, in compliance with the
provisions of the act above mentioned, how long a period of time must
elapse before this department can absolutely be assured that its plans
for development of the lands taken cannot be affected in any way by
claims of any nature by any partj' or parties who might consider their
interests or possible interests affected by said takings?
In this connection, I call to your attention again G. L.,
c. 79, § 8, particularly the last line thereof, which says: —
Failure to give notice shall not affect the validity of the proceedings,
or the time within which a petition for damages may be filed, except as
provided by section sixteen.
Section 16 is as follows: —
A petition for the assessment of damages under section fourteen may
be filed within one year after the right to such damages has vested; but
any person whose property has been taken or injured, and who has not
received notice under section eight or otherwise of the proceedings where-
by he is entitled to damages at least sixty days before the expiration of
such year, may file such petition within six months from the time when
possession of his property has been taken or he has otherwise suffered
actual injury in his property.
I therefore advise you that anyone who is entitled to notice,
but who has received none, may not bring action to question
the validity of the taking, but is left to such remedy as is
afforded by section 16, and must bring his action within
the time fixed by that section. As G. L., c. 79, § 12, pro-
vides, in part, that ''the damages for property taken under
this chapter shall be fixed at the value thereof before the
taking," such a claimant, even if he established his claim,
might not claim the value of the land as enhanced by any
improvements made by the Commonwealth.
60 opinions of the attorney-general.
Constitutional Law — Criminal Cases — Burden of
Proof.
An act which provides, in substance, that after some material facts have been
established in criminal cases, the burden of proof with respect to certain essen-
tial facta may, under certain circumstances, be placed upon the defendant,
is constitutional.
Govi'rnor. Yoli Tcquest me to consider House Bill No. 1120, entitled
February 2(i. ' 'An Act lelative to the burden of proof in prosecutions for
certain violations of the laws relative to hunting and trap-
ping by aliens."
The proposed bill amends G. L., c. 131, § IG, so that said
section shall read as follows : —
No unnaturalized foreign born person who has resided within the com-
monwealth for ten consecutive days, who does not own real estate in the
commonwealth to the value of five hundred dollars or more, shall hunt,
capture or kill any wild bird or animal of any description, excepting in
defence of the person, and no such person shall, within the commonwealth,
own or have in his possession or under his control a shotgun or rifle; any
shotgun or rifle owned by him or in his possession or under his control
shall be forfeited to the commonwealth. Violations of this section shall
be punished by a fine of fifty dollars or by imprisonment for not more
than one month, or both. If, in any prosecution for violation of this
section, the defendant alleges that he has been naturalized or that he
owns real estate in the commonwealth to the value of five hundred dollars
or more, the burden of proving the same shall be upon him.
The bill thus places upon the defendant, after the Com-
monwealth has established certain material facts, the bur-
den of proving that he has been naturalized or that he owns
real estate in the Commonwealth to the value of $500.
These are matters which relate to him personally, and which
are exceedingly difficult and, in many cases, impossible for
the State to prove.
Where the subject-matter of a negative averment in the indictment, or
a fact relied upon by defendant as a justification or excuse, relates to him
personally or otherwise lies peculiarly Avithin his knowledge, the general
rule is that the burden of proof as to such averment or fact is on him.
(12 Cyc. 381, 382.)
JAY R. BENTON, ATTORNEY-GENERAL. 61
In Commonwealth v. Williams, 6 Gray, 1, 5, the court
said : —
It is no new thing in the history or administration of the law, that
pecuUar and artificial force is given or attributed to particular facts, or
series of facts, as means and instruments of legal proof. This may be
seen in many of the rules of evidence which prevail by the common law,
and in others which derive their force from legislative acts. These then
are conclusive presumptions, which, from motives of public policy, or
for the sake of greater certainty, or for the promotion of the peace and
quiet of the community, have been adopted by common consent. Some-
times the common consent, by which this class of presumptions is estab-
lished, is declared through the medium of the judicial tribunals, and thus
becomes a part of the common law of the land. And sometimes it is
expressly declared by the direct authority of the Legislature in statutes
duly enacted.
See, also, Duggan v. Bay State Street Ry. Co., 230 Mass.
370, 380.
In Holmes v. Hunt, 122 Mass. 505, 517, the court said: —
The statutes of this Commonwealth have imposed upon the defendant
in criminal prosecutions the burden of proving any license, appointment
or authority, relied on as a justification, which the Commonwealth, but
for these statutes, would have been obliged to disprove.
Such statutes have been held to be constitutional. Holmes
V. Hunt, supra; Commonwealth v. Williams, 6 Gray, 1;
Commonwealth v. Lahy, 8 Gray, 459; Commonwealth v.
Carpenter, 100 Mass. 204; Commonwealth v. Anselvich, 186
Mass. 376, 378; Duggan v. Bay State Street Ry. Co., 230
Mass. 370, 380.
As early as 1793 statutes were enacted in this Common-
wealth providing that the proof of certain facts be treated
as presumptive evidence of guilt, and placing the burden
of proof on the defendant to discharge himself. St. 1793,
c. 42, § 6. See also St. 1833, c. 148, § 3; St. 1844, c. 102,
§ 1; St. 1849, c. 158, § 1.
Thus the history of both legislative and judicial decisions
in this Commonwealth shows that under certain circum-
62
OPINIONS OF THE ATTORNEY-GENERAL.
stances, after some material facts have been established,
the burden of proof with respect to certain essential facts
may be placed upon the defendant. It is not necessary, for
the purposes of this opinion, to consider the limitation upon
the power of the Legislature so to act.
I am therefore of the opinion that the proposed bill, if
enacted, would be constitutional.
Constitutional Law — "Anti-aid" Amendment —
Playgrounds — Lease of Park Lands by City.
l^egislation designed or framed to accomplish the ultimate object of placing prop-
erty in the hands of one or more private persons after it has been taken bj'
the superior power of the government from another private person, avowedly
for a public purpose, is unconstitutional.
The Legislature may authorize the sale or lease of land held for a public purpose
when the public purpose designed has been completely accomplished, or when
through lapse of time or changed conditions continued ownership of the land
by the public agency is no longer necessary or needed.
Land of a city or town held strictly for public uses as a park, and not subject to
the terms of any gift, devise, grant, bequest or other trust or condition, is
under the control of the General Court, which may transfer it to some other
agency of government or devote it to some other public use.
Whether a statute appropriates property to a public use or to a private use is a
judicial question, upon which the constitutionality of the act depends.
The advisability, necessity or expediency of passing legislation is a matter solely
for the determination of the Legislature.
To the House
Committee on
Cities.
1923
March 12.
You request my opinion as to the constitutionality of
House BillJNo. 1126, entitled "An Act to enable the city
of Melrose to improve and adapt certain of its undeveloped
park lands located on Lynn Fells Parkway and Tremont
Street|to the purpose for which they were acquired by said
city."
Said bill reads as follows : —
Section 1. The city of Melrose is hereby authorized by and with
the consent of its park commission to lease at a nominal rental for a term
of not exceeding ninety-nine years certain of its now undeveloped park
lands more particularly described in section two of this act to an associa-
tion or corporation to be organized and maintained by Melrose citizens
for the purpose of improving said park lands by constructing and enclos-
JAY R. BENTON, ATTORNEY-GENERAL. 63
ing an athletic field and erecting structures thereon for use in connection
with athletics. Such association or corporation may rent the same for
athletic contests and may charge or permit a charge for admission thereto,
but when not so used shall, subject to reasonable rules and regulations,
permit the inhabitants of said city to use the same as a playground; it
may issue bonds or other obligations for the purpose of raising funds for
such improvement and in all respects, except as herein otherwise pro-
vided, may control and manage said property during the term of said
lease and from time to time establish rules and regulations governing
the use thereof. All profits accruing to said association or corporation
from the use and management of said property shall be used for the fur-
ther development and improvement thereof.
Section 2. The land that may be leased as herein authorized consists
of about seven acres located north of Lynn Fells parkway and east of
Tremont street in said city and is more particularly bounded and de-
scribed as follows: — Beginning at the northeast corner of Lynn Fells
parkway and Tremont street northerly by Tremont street, six hundred
and ninety-five feet more or less to land of R. J. Munn and brothers;
thence easterly on land of said Munn and brothers, land of DeMar and
by Union street, four hundred and fifteen feet more or less to land now
or formerly of Conway estate; thence southerly by said land of Conway
estate three hundred and thirty-eight feet more or less to the southwesterly
corner of said land of Conway estate and the present park line; thence
easterly one hundred and five feet more or less on said Conway estate
land and along said park line to land of William Magner and the line
of the proposed extension of Ashland street; thence southerly by the
proposed extension of Ashland street two hundred feet more or less to
Lynn Fells parkway; thence westerly by Lynn Fells parkway seven
hundred feet more or less to the point of beginning.
Section 3. So long as said property is used solely for the purposes
herein expressed, it shall be exempt from taxation but whenever it shall
cease to be so used the said leasehold term shall terminate and said land
shall revert to the city of Melrose and any structures thereon become its
absolute property.
Section 4. This act shall take effect upon its acceptance by a vote
of the board of aldermen of said city within two years from the date of
its passage and the terms of any lease under the authority hereby granted
shall be approved by vote of said board.
It does not appear in what manner this land was acquired
by the city of Melrose, whether by a taking under the right
of eminent domain, purchase or gift. I assume, however,
that said land was acquired and is now held for playground
64 OPINIONS OF THE ATTORNEY-GENERAL.
purposes under the provisions of G. L., c. 45, § 14 (R. L.,
c. 28, § 19).
In Wright v. Walcott, 238 Mass. 432, the court says: —
Land acquired by a city or town by eminent domain or through ex-
penditure of public funds, held strictly for public uses as a park and not
subject to the terms of any gift, devise, grant, bequest or other trust or
condition, is under the control of the General Court. It may be trans-
ferred to some other agency of government or devoted to some other
public use by legislative mandate. The power of the General Court in
this regard is supreme over that of the city or town. When title in fee
is acquired in the land by the municipality for such a public use, there is
no right of reversion to the original owner. He has been divested of
every vestige of title when he parted with the fee. Higginson v. Treasurer
& School House Commissioners of Boston, 212 Mass. 583. Stewart v.
Kansas City, 2.39 U. S. 14, 16.
Playgrounds acquired and maintained by cities and towns
are closely analogous in their essential features to parks.
See Higginson v. Treasurer & School House Commissioners
of Boston, supra, and cases cited.
But legislation designed or framed to accomplish the ulti-
mate object of placing property in the hands of one or more
private persons after it has been taken by the superior
power of the government from another private person, ,
avowedly for a public purpose, is unconstitutional. See
Wright v. Walcott, supra: Salisbury Land & Improvement
Co. V. Commonwealth, 215 Mass. 371, and cases there re-
viewed and collected.
Undoubtedly the Legislature may, under our Constitu-
tion, authorize the sale or lease of land held for a public I
purpose when the public purpose designed has been com-
pletely accomplished, or when through the lapse of time or
changed conditions continued ownership of the land by the
public agency is no longer necessary or needed for the pub- i
lie purpose for which the land was acquired. Chase v.
Sutton Mfg. Co., 4 Cush. 152; Winnisimmet Co. v. Grueby,
209 Mass. I; Bancroft v. Ca7nbridge, 126 Mass. 438; Wor-
den V. New Bedford, 131 Mass. 23; Dingley v. Boston, 100
JAY R. BENTON, ATTORNEY-GENERAL. 65
Mass. 544; Davis v. Rockport, 213 Mass. 279; Sweet v.
Rechel, 159 U. S. 380; Wright v. Walcott, supra, and cases
cited. So, also, since 1901 there has been a general law in
this Commonwealth authorizing the abandonment of lands,
easements and other rights taken by cities and towns other-
wise than by purchase, upon compliance with certain con-
ditions set forth in the statute. G. L., c. 40, § 15. The
omission therein of mention of land acquired by purchase
or gift is significant. But the apparent design of the bill
under consideration is to permit the lease for a term not
exceeding ninety-nine years of the aforesaid undeveloped
park lands, in order that they may be improved and better
adapted to the purpose for which they were acquired by the
city. The power to lease is limited "to an association or
corporation to be organized and maintained by Melrose
citizens for the purpose of improving said park lands by
constructing and enclosing an athletic field and erecting
structures thereon for use in connection with athletics."
If this bill works simply a change of control of said park
land, taking it from one party who holds it for a public use
and transferring it to another to hold in the same manner
for precisely the same public use, there may well be a con-
stitutional objection. To such a situation the case of Cary
Library v. Bliss, 151 Mass. 364, seems applicable. In that
case, in holding that a public library held upon a public
charitable trust of indefinite duration by trustees provided
by the donor could not be taken by eminent domain and
transferred to a corporation created to manage it for like
purposes, the court said: —
The question arises, whether taking property from one party, who holds
it for a public use, by another, to hold it in the same manner for precisely
the same public use, can be authorized under the Constitution. Can
such a taking be founded on a pubUc necessity? It is unhke taking for
a pubUc use property which is already devoted to a different public use.
There may be a necessity for that. In the first case, the property is
aheady appropriated to a public use as completely in every particular
as it is to be. Can the taking be found to be for the purpose which must
66 OPINIONS OF THE ATTORNEY-GENERAL.
exist to give it validity? In every case it is a judicial question whether
the taking is of such a nature that it is or may be founded on a public
necessity. If it is of that nature, it is for the Legislature to say whether
in a particular case the necessity exists. We are of opinion that the pro-
ceeding authorized by the statute was in its nature merely a transfer of
property from one party to another, and not an appropriation of property
to public use, nor a taking which was, or which could be found by the
liCgislature to be, a matter of public necessity. West River Bridge v.
Dix, 6 How. 507. Lake Shore & Michigan Southern Railway v. Chicago
& Western Indiana Railroad, 97 111. 506. Chicago & Northwestern Rail-
way V. Chicago dt Evanston Railroad, 112 111. 589.
See also VI Op. Atty. Gen. 508. It is to be noted, how-
ever, that the case of Gary Library v. Bliss, supra, involved
a trust created by will.
In Wright v. Walcott, supra, the court expressly states
that land of a city or town held strictly for public uses as
a park and not subject to the terms of any gift, devise, grant,
bequest or other trust or condition, is under the control of the
General Court, which may transfer it to some other agency
of government or devote it to some other public use. This
is in accord with the general rule that the public property
of a city or town does not belong to it in the same absolute
sense as the property of an individual belongs to him, but
is held by it, as a subordinate part of the government, for
public uses, and subject to the authority of the Legislature,
which may change or authorize a change of the public
agency of government in charge of it. Higginson v. Treas-
urer & School House Commissioners of Boston, 212 Mass.
583, and cases cited; Stone v. Charlestown, 114 Mass. 214;
Ware v. Fitchburg, 200 Mass. 61, and cases cited.
The bill under consideration does not involve any taking
of property either from a private person or from the public.
There is nothing in the bill which takes away from the city
its legal title to the land. It merely authorizes the leasing
of property already owned and held by the city. In this
respect, also, the case of Gary Library v. Bliss, supra, is
distinguishable.
The question whether a statute appropriates property to
JAY R. BENTON, ATTORNEY-GENERAL. 67
a public use or to a private use is a judicial one, upon which
the constitutionality of the act depends. Consequently,
the determination of the Legislature thereon may be revised
by the court. But the question as to the advisability,
necessity or expediency of passing legislation is solely for
the determination of the Legislature. Boston v. Talbot,
206 Mass. 82; Moore v. Sanford, 151 Mass. 285; Lowell v.
Boston, 111 Mass. 454; Opinion of the Justices, 204 Mass.
607.
The next question is whether the management of this
undertaking can constitutionally be vested in the associa-
tion or corporation to be formed as provided in this bill,
in view of the so-called "anti-aid amendment" (Mass.
Const., Amend. XLVI). The second section of said amend-
ment provides, in part : —
. . . and no grant, appropriation or use of public money or property
or loan of public credit shall be made or authorized by the commonwealth
or any poUtical division thereof for the purpose of founding, maintaining
or aiding any school or institution of learning whether under public con-
trol or otherwise, wherein any denominational doctrine is inculcated,
or any other school, or any college, infirmary, hospital, institution, or
educational, charitable or religious undertaking which is not publicly
owned and under the exclusive control, order and superintendence of
public officers or public agents authorized by the commonwealth or
federal authority or both. . . .
The plain intent of this amendment is to require that the
expenditure of public money for any educational, charitable
or religious undertaking which possesses the requisite public
character shall be under exclusive public control.
In deciding this question it is to be observed that although
said association or corporation may rent the premises "for
athletic contests and may charge or permit a charge for
admission thereto," it is significant that it is authorized to
issue bonds or other obligations for the purpose of raising
funds for improvement, and it is particularly provided that
"all profits accruing to said association or corporation from
68 OPINIONS OF THE ATTORNEY-GENERAL.
the use and management of said property shall be used for
the further development and improvement thereof." Like-
wise significant are the provisions for freedom from taxation
and termination of the lease contained in section 3 of the
bill.
It is obvious that said contemplated lessee cannot operate
for profit; also, that the city of Melrose is not authorized
to appropriate any money to assist the lessee in its work.
It would seem that the contemplated undertaking is not
religious, charitable or educational, within the meaning of
said constitutional amendment. Accordingly the case is
dissimilar in all material respects to that upon which the
Attorney-General rendered an opinion to the committee on
bills in the third reading. VI Op, Atty. Gen. 117. I am
therefore of the opinion that the bill does not fall within the
scope of said amendment. Nor can it be said that the bill
is unconstitutional because it takes away from the city the
use or control of public property which had become vested
in it for a public purpose. Even if the bill had this effect,
the objection would be cured by the fact that the lease
therein authorized is subject to the consent of the park
commissioners of the city of Melrose, the body vested with
charge and control of parks and playgrounds. The city,
therefore, could not well complain of a use of its property
to which it assents through its duly constituted authority.
See Ware v. Fitchhurg, 200 Mass. 61, and cases cited.
Your committee is entitled to take into consideration all
the facts relating to the pending bill in determining whether
or not the necessity exists for granting the authority therein
referred to.
In my opinion the bill, if enacted, would be constitutional.
jay r. benton, attorney-general. 69
Constitutional Law — Public Money — Reimburse-
ment.
A proposed bill which authorizes the city of Boston to discharge its obligation to
reimburse a certain company for losses sustained in certain coal deliveries is
constitutional, inasmuch as the reimbursement is not a gift of the public
money but is in the nature of compensation for value received by the city.
You request me to consider Senate Bill No. 31, entitled Governor.
"An Act authorizing the city of Boston to discharge its MaJch^is.
obligation to reimburse the D. Doherty Company for losses
sustained in certain coal deliveries."
WTiile the bill itself does not definitely disclose the precise
nature of the obligation referred to therein, I have ascer-
tained from data submitted to the committee on cities that
the D. Doherty Company, in order to supply the amount of
coal to the schools of Boston called for by its contract, was
obliged to purchase coal from certain sources at an increased
price, and that the sum set forth in the bill represents the
difference between the contract price and the replacement
price; in other words, the actual loss sustained by the D.
Doherty Company in filling its contract.
Apparently the D. Doherty Company was under no legal
obligation to supply this coal or to go on with its contract,
inasmuch as it was undoubtedly discharged from its obliga-
tion to make deliveries thereunder by reason of seizures of
its coal by the Federal government in the exercise of war-
time powers.
On these facts, there is an unquestionable moral or equit-
able right to reimbursement. But, regardless of the moral
obligation, if the bill in effect authorizes the city of Boston
to pay out money raised by general taxation gratuitously
to an individual, although under no legal obligation to do
so, it is manifestly unconstitutional unless some public pur-
pose or interest is furthered thereby.
The Supreme Judicial Court of this Commonwealth has
rigidly applied the rule that public money can be expended
only for a public purpose.
70 OPINIONS OF THE ATTORNEY-GENERAL.
In Whittaker v. Salem, 216 Mass. 483 (a case in which a
moral obligation unquestionably existed), the court says: —
However meritorious the project may appear to be either in its prac-
tical or ethical or sentimental aspects, if it is in essence a gift to an indi-
vidual rather than a furthering of the public interest, money raised b}^
taxation cannot be appropriated for it. These principles often have been
declared respecting a great variety of subjects and cannot be doubted.
To the same effect are Lowell v. Boston, 111 Mass. 454;
Mead v. Acton, 139 Mass. 341; Kinginan v. Brockton, 153
Mass. 255; Opinion of the Justices, 204 Mass. 607; ibid.,
211 Mass. 624.
But on the facts before me it cannot fairly be said that
the bill under consideration authorizes a gift. Rather, it
would seem that it authorizes compensation or reimburse-
ment for value received by the city.
It has been decided in several cases that towns may vote
money to indemnify their agents who may incur a liability
in the performance of their duties, although the towns were
under no legal obligation to do so. Nelson v. Milford,
7 Pick. 18; Bancroft v. Lynnfield, 18 Pick. 566. In the case
of Friend v. Gilbert, 108 Mass. 408, it was decided that a
town could properly award a sum of money as compensa-
tion to an individual who had rendered valuable service to
the town, although no contract existed for such services.
The court there said : —
The petitioners contend that the town had no legal relation or connec-
tion with Watson, and therefore that the payment to him is a gratuity
or gift. It is true the town had no express contract with him, but they
had a direct and vital interest in his work and its quality, and we cannot
regard the proposed payment to him as a mere gratuity. The vote is,
to pay him five thousand dollars as compensation, that is, as an equiva-
lent, for his services, and for the benefits received by the town, and not
as a gift without consideration. The fact that the town was under no
legal obligation to pay does not make it a gift without equivalent. . . .
We are of opinion, in this case, that it was within the corporate power
of the town to pass the vote in ciuestion. Whether it was wise to do so.
JAY R. BENTON, ATTORNEY-GENERAL. 71
was a matter within the discretion of the inhabitants of the town; and,
in the absence of fraud or corruption, we cannot revise their judgment.
The facts of the present case are fully as strong, if not
stronger than those in the case last cited. I am accord-
ingly of the opinion that the proposed bill, if enacted, would
be constitutional.
March 21.
Insurance — Joint and Several Liability of Two or
More Companies — Use of Corporate Name of
MORE than One Insurance Company at the Head
OF A Policy.
A policy of insurance on which two or more companies are jointly and severally
liable may not be issued except when specifically authorized by statute.
A contract of insurance must be headed or entitled only by the name of the com-
pany issuing the policy.
You request my opinion as to the effect of the first clause m?iionM°S'
of G. L., c. 175, § 18, requiring, as you state, that a contract ^"^ig'^s'""'
of insurance shall "be headed or entitled only by the name
of the company." You ask to be advised whether that
clause "prevents the use of policies on which two or more
companies are severally and jointly liable." The first
clause of G. L., c. 175, § 18, is as follows: —
Every company shall conduct its business in the commonwealth in its
corporate name, and all policies and contracts, other than contracts of
corporate suretyship, issued by it, shall, except as provided in section
fifty-six of chapter one hundred and fifty-two, be headed or entitled only
by such name.
You submit with your letter a copy of the proposed policy,
entitled "automobile policy," which is neither a contract of
corporate suretyship nor one falling within the exemption
of G. L., c. 152, § 56. It purports to be a policy establish-
ing a joint and several liability on seven companies, all of
whose corporate names head the policy.
72 OPINIONS OF THE ATTORNEY-GENERAL.
G. L., c. 175, § 105, specifically authorizes fidelity and
corporate surety companies to "act as joint or sole surety"
upon official and other bonds.
G. L., c. 152, § 56, specifically authorizes two or more in-
surance companies to "unite in issuing joint and several
workmen's compensation policies which may be headed by
the names of all such companies."
The provisions of G. L., c. 175, as to reinsurance of risks
do not apply to this proposition.
It would seem clear, therefore, that the Legislature has
clearly indicated under what circumstances a company may
undertake a joint and several liability, and under what
circumstances the names of more than one company may
head a contract of insurance. As the policy in question
does not fall within the exceptions noted in section 18, it
may not be written by several companies and headed by
their names.
I answer your question, therefore, in the negative.
jay r. benton, attorney-general. 73
Constitutional Law — "Anti-aid" Amendment — Ap-
propriation OF Public Money for Private Pur-
poses — Soldiers' Home — Civilian Employees —
Civil Service Rules and Regulations — State
Retirement System.
The Soldiers' Home is a privately owned charitable corporation, not a State in-
stitution.
Employees of the Soldiers' Home are not employees of the Commonwealth, and
are not within the scope of the State retirement system, provided for by
G. L., c. 32, §§ 1-5.
Employees of the Soldiers' Home are not "in the ser\dce of the Commonwealth."
within the meaning of G. L., c. 31, § 3, and are not subject to the ci\dl service
rules and regulations.
A statute extending the State retirement system so as to include all civilian em-
ployees of the Soldiers' Home would authorize the employment of public
money for private purposes, and would be unconstitutional.
A statute extending the State retirement system so as to include the civilian em-
ployees of the Soldiers' Home is not an appropriation "for the maintenance
and support of the Soldiers' Home in Massachusetts," authorized by Mass.
Const. Amend. XLVI, § 2.
In your letter of February 23rd you request my opinion "^l^^^^f r^p-
on the following questions : — reseiuatives.
March 22.
1. Are the employees of the Soldiers' Home State employees, within
the general meaning of that term in the statutes?
2. Are the employees of the Soldiers' Home subject to the civil semce
laws, rules and regulations now in force?
3. If your answer to question 1 is in the affirmative, are State employees
at the Soldiers' Home now within the scope of the State retirement act,
or is a special act necessary to bring them within its provisions?
4. If your answer to question 2 is in the negative, -will you then answer
the question — would House Bill No. 784, if enacted into law, be consti-
tutional?
''The Trustees of the Soldiers' Home in Massachusetts"
was incorporated by St. 1877, c. 218, amended by St. 1886,
c. 32. The number of trustees was limited to eighteen, of
whom fifteen were to be members of the voluntary associa-
tion known as the Department of Massachusetts, Grand
Army of the Republic. In 1889 the number of trustees was
increased from eighteen to twenty-one, the three new trus-
74 OPINIONS OF THE ATTORNEY-GENERAL.
tees to be appointed by the Governor, by and with the
advice and consent of the Council. St. 1889, c. 282. By
Res. of 1905, c. 77, $100,000 was appropriated by the Com-
monwealth, to be expended under the direction of the
Trustees of the Soldiers' Home, for the construction and
furnishing of an additional building. A reversionary in-
terest in the building was reserved to the Commonwealth
by this resolve.
The Soldiers' Home is financed in part by the income from
voluntary contributions and bequests, and in part by yearly
appropriations by the Commonwealth. Mass. Const. Amend.
XLVI, § 2, which forbids State contributions to private
charitable organizations, contains a specific exception to
the effect "that appropriations may be made for the main-
tenance and support of the Soldiers' Home in Massachu-
setts and for free public libraries in any city or town."
Finally, the Soldiers' Home relies also for its support upon
income derived from the Federal government. $120 per
annum is paid by the Federal government to the Common-
wealth of Massachusetts for each inmate of the Home.
The sums so received by the Commonwealth are paid over
to the treasurer of the Soldiers' Home, in accordance with
the provisions of St. 1890, c. 373.
1 . In my opinion, the Soldiers' Home is a privately owned
charitable corporation. Although the Commonwealth con-
tributes to the support of the Home, it is not a State insti-
tution, and the employees of the Home are in no sense
employees of the Commonwealth. In this connection your
attention is respectfully directed to an opinion rendered by
the Attorney-General on February 5, 1913, in response to a
letter from the treasurer of the Soldiers' Home requesting
an opinion as to whether the Home should be covered by
insurance under the workmen's compensation act, St. 1911,
c. 751. In determining this question it was necessary to
decide whether the Home was a State institution. On this
point the opinion states: 'The Home is not a State insti-
tution, and the employees of the Home are in no sense
JAY R. BENTON, ATTORNEY-GENERAL. 75
employees of the Commonwealth." My answer, therefore,
to the first question propounded by you is in the negative.
2. Section 3 of the present civil service law, G. L., c. 31,
provides that the Civil Service Commission shall, subject
to the approval of the Governor and Council, from time to
time make rules and regulations which shall regulate the
selection of persons to fill appointive positions in the gov-
ernment of the Commonwealth, the several cities thereof,
and certain towns, and the selection of persons to be em-
ployed as laborers or otherwise "in the service of the Com-
monwealth and said cities and towns." Clause 5 of rule 1
of the civil service rules provides : —
Persons paid by the Commonwealth or any city, whether carried on
the regular payroll, on special payroll or by presenting a bill personally
or bj^ some other person, company or corporation, shall be deemed to be
"in the service of the Commonwealth or the city" within the meaning of
these rules.
As the employees of the Soldiers' Home are neither em-
ployed nor paid by the Commonwealth, it is my opinion
that they are not subject to the civil service laws, rules and
regulations now in force; and my answer to your second
question is also in the negative.
3. G. L., c. 32, § 2, provides for a retirement association
for the employees of the Commonwealth, including employ-
ees in the service of the Metropolitan District Commission.
Section 1 of the same act, as amended by St. 1922, c. 341,
§ 1, defines "employees" as meaning "persons permanently
and regularly employed in the direct service of the Com-
monwealth or in the service of the Metropolitan District
Commission, whose sole or principal employment is in such
service." It is apparent from what has been said above
that the employees of the Soldiers' Home are not now within
the scope of the State retirement act.
4. Your final question is whether House Bill No. 784, if
enacted into law, would be constitutional. The act pro-
7G ' OPINIONS OF THE ATTORNEY-GENERAL.
vides, in substance, that all civilian employees of the Trus-
tees of the Soldiers' Home in Massachusetts shall be brought
within the provisions of the present State retirement sys-
tem, G. L., c. 32, §§ 1-5.
As a general proposition, it seems clear that a law author-
izing the employment of State funds, under a retirement
system such as that now in force in the Commonwealth,
to pension the ex-employees of a public charitable corpora-
tion other than a State institution would be unconstitu-
tional.
Looked at, if it may be so regarded, as a circuitous method
of benefiting the public charitable corporation itself, such
an act would violate the terms of Mass. Const. Amend.
XLVI, the so-called "anti-aid" amendment, and would
therefore be unconstitutional. Looked at from the view-
point of the individual recipients of the pension, such an
act would authorize the employment of public money for
private purposes, and would therefore be unconstitutional.
Lowell V. Boston, 111 Mass. 454; Whittaker v. Salem, 216
Mass. 483; Opinion of the Justices, 175 Mass. 599; Loan
Assn. V. Topeka, 20 Wall. 655.
The pensioning of certain special classes of persons is
clearly within the constitutional authority of the Legisla-
ture. Veterans of former wars are one example of a class
to whom the Legislature may thus disburse public money.
The constitutionality of such action rests, however, upon
considerations quite apart from those involved in the present
problem. It rests upon the power to reward unusual and
distinguished public service, and because a public purpose
is deemed involved, namely, the promotion of a spirit of
loyalty and patriotism. See Opinion of the Justices, 211
Mass. 608; Opinion of the Justices, 190 Mass. 611.
State employees form another group, the constitutionality
of whose pensioning appears never to have been questioned.
LTnusual and distinguished public service can here hardly
be held the justification for State expenditures. The con-
stitutional power of the Legislature to pension State em-
JAY R. BENTON, ATTORNEY-GENERAL. 77
ployees probably rests, in part, upon one or both of the
following considerations. It may be thought that by pen-
sioning its own employees the State secures more efficient
service, either because a contented employee may be ex-
pected to render better service than a discontented one;
or because the prospect of recompense at the completion of
a period of continuous service is likely to lead to a desire
to remain in that service, and therefore to an effort to give
satisfaction. On the other hand, a pension system may be
looked upon perhaps simply as a part of the consideration
which the State gives to secure the services which it needs.
A dictum in Opinion of the Justices, 175 Mass. 599, appears
to rest the power upon the latter basis.
The questions, as we understand them, both assume that there was
110 provision of law in existence before the death of the officer by which
the money in question would be payable as supposed. If such a provision
should be enacted ^vith regard to the widow, heirs, or legal representatives
of a living officer, it naturally would be regarded as pledging the faith of
the State to the officer himself, and thus as constituting part of the con-
sideration for his future service.
Mass. Const. Amend. XLVI expressly exempts from the
scope of its inhibition certain appropriations, and provides
that "appropriations may be made for the maintenance and
support of the Soldiers' Home in Massachusetts."
The final inquiry made by you therefore resolves itself
into the single question: Can the constitutionality of House
Bill No. 784 be supported by reason of the phrase in the
"anti-aid" amendment which authorizes appropriations for
the maintenance and support of the Soldiers' Home?
If pensions to employees are in fact a part of the consider-
ation of their contract of employment, it might be contended
that a State pension to the civilian employees of the Sol-
diers' Home should be looked upon merely as a contribu-
tion towards the hiring of employees by the Home, — in
other words, a contribution towards the support and main-
78 OPINIONS OF THE ATTORNEY-GENERAL.
tenance of the Home, and hence within the exception to the
"anti-aid" amendment.
After careful consideration I am of the opinion, however,
that this Hne of argument, though plausible enough on its
face, is untenable.
The primary object, the thing actually accomplished by
extending the benefits of the present retirement system to
the civilian employees of the Home, is not to benefit the
Home by making it easier or cheaper for it to engage em-
ployees. As a practical matter, it may well be doubted
whether the wages of employees would be a whit lower after
the passage of the act than they were before. Certainly
they would not be lower by the full amount of the money
to be contributed by the Commonwealth. That money,
either in whole or in part, would be expended for the sup-
port and maintenance, not of the Home, but of the Home's
ex-employees. Such an expenditure of public money is un-
constitutional. The principle which makes it so is the
general one already referred to. Public money must be
reserved for public purposes. That principle is wholly
unrelated to the "anti-aid" amendment, and the saving
clause in that amendment cannot be relied upon to warrant
the expenditures in question. The clause can be no broader
in scope than the general prohibition to which it is merely
an exception.
Moreover, the phrase "for the maintenance and support
of the Soldiers' Home" must be construed strictly. A broad,
sweeping prohibition was enacted. A single specific excep-
tion was then inserted therein. Since this exception limits
the application of the general policy evinced by the amend-
ment as a whole, and is in the nature of a special privilege
or grant, by familiar principles of interpretation it must be
construed strictly and not extended by implication. Butch-
ers Slaughtering, etc., Assn. v. Boston, 214 Mass. 254, 258.
In my opinion, the words used go no farther than to author-
ize the Legislature to continue in the future, as it had done
in the past, to make voluntary contributions towards the
JAY R. BENTON, ATTORNEY-GENERAL. 79
support and maintenance of the Home. They did not con-
template, and cannot, I beheve, be deemed to authorize,
an act which purports to obhgate the Commonwealth in
the future to expend money as needed to pension ex-em-
ployees of the Home.
Further, House Bill No. 784 would impose the retirement
system upon all employees of the Soldiers' Home, whether
they desired it or not. Serious doubts might arise, in my
opinion, as to the constitutionality of what would appear to
be an impairment of the obligation of those contracts of
service between the Home and its employees which might
be in existence at the time the act becomes effective. In
view of the conclusion arrived at above, however, I need not
develop further this aspect of the problem.
I am constrained to advise you in reply to your fourth
inquiry that, in my opinion, House Bill No. 784, if enacted,
would be unconstitutional.
Corporations — Stockholders — Right to inspect
Corporate Records.
A proposed bill is constitutional which provides that, if an action for damages
or a proceeding in equity is commenced for neglect or refusal to exhibit for
inspection the stock and transfer books of a corporation, "it shall be a defence
that the actual purpose and reason for the inspection sought are to secure a
list of stockholders for the purpose of selling said list, or copies thereof, or of
using the same for a purpose other than in the interest of the applicant, as a
stockholder, relative to the affairs of the corporation."
You request me to consider House Bill No. 620, entitled ^othe
"An Act relative to the exhibition of certain corporate
records for inspection by stockholders."
This bill contemplates an amendment of G.L., c. 155, §22,
under which a stockholder is given an absolute right to in-
spect the stock and transfer books of a corporation, regard-
less of his purpose in making such examination. Statutes
of other jurisdictions confer upon stockholders a similar
right, and have been upheld by the courts thereof. Foster
Governor.
1923
March 23.
80 OPINIONS OF THE ATTORNEY-GENERAL.
V. White, 86 Ala. 467; Johnson v. Langdon, 135 Cal. 624;
State V. Middlesex Banking Co., 87 Conn. 483; Stone v.
Kellogg, 165 111. 192; Ellsworth v. Dorwart, 95 la. 108;
Knox V. C churn, 117 Me. 409; Wight v. Heublein, 111 Md.
649; //i*6 Constructio7i Co. v. iVe^y England Breeders^ Club,
74 N. H. 282; Henry v. 5a6coc/j cfe PFi7cox Co., 196 N. Y.
302; Cincinnati Volkshlatt Co. v. Hoffmeister, 62 Ohio St.
189, 198; Kimball v. Bern, 39 Utah, 181; Lewis v. Brainerd,
53 Vt. 519.
It is well settled that the common law right of a stock-
holder to inspect the books of a corporation is a qualified
and not an absolute right, the court having power to de-
termine whether or not a stockholder's desire for examination
not only is reasonable but "has reference to the interests of
the corporation and his personal interest as a member of
it." Varney v. Baker, 194 Mass. 239; Butler v. Martin,
220 Mass. 224.
At common law the procedure by which a stockholder
obtained access to the books of a corporation, after having
been refused the privilege of inspecting them, was by writ
of mandamus. Ordinarily, relief by mandamus was not
given under these circumstances unless it appeared to the
court that the interests or rights of the petitioner as a stock-
holder were likely to be seriously prejudiced and affected.
But since the enactment of G. L., c. 155, § 22, the Supreme
Court of this Commonwealth has held that, unless the
statute imposes restrictions or limitations, the right of ex-
amination thereby granted is absolute, and the motive or
purpose of the stockholder in seeking to exercise it is not
the proper subject of judicial inquiry. The courts of other
jurisdictions have likewise so decided in interpreting similar
statutes in their jurisdictions.
In construing the present statute, in the case of Shea v.
Parker, 234 Mass. 592, the Supreme Judicial Court says, at
page 594 : —
JAY R. BENTON, ATTORNEY-GENERAL. 81
It may be presumed that before enacting the statute the Legislature
considered the possibility that information thus obtained might as in the
case at bar have a commercial value distinct and quite apart from the
stockholder's interest as a corporate member, and undoubtedly could
have made the right of examination dependent upon the motive actuating
the stockholder. It has not however so done. The words conferring the
right are unlimited, and the statute is mandatory. ^Vllile a stockholder's
right to examine the general books of account to ascertain the volume of
business transacted, and the method and efficiency of corporate manage-
ment is left as at common law, the stock and transfer books by the statute
are at all times to be exhibited under reasonable conditions for his full
examination. The right also includes making of copies and transcripts
as well as the assistance of counsel and copyists for such purpose. The
statute when viewed in the light of its origin should not be so construed
as to reduce the right to a useless inquiry', which it necessarily would be
in most cases unless the stockholder is permitted to copy the names,
residences and numbers of shares of the stockholders. . . .
We are therefore of opinion that instead of being merely declaratory,
or limiting the right to the sound discretion of the court, the statute was
intended to do away -svith the restrictions imposed at common law on the
examination of the stock and transfer books of a domestic corporation.
Under the terms of the proposed bill, if an action for damages or a pro-
ceeding in equity is commenced under the statute for neglect or refusal
to exhibit for inspection the stock and transfer books, "it shall be a de-
fence that the actual purpose and reason for the inspection sought are to
secure a list of stockholders for the purpose of selling said list, or copies
thereof, or of using the same for a purpose other than in the interest of
the applicant, as a stockholder, relative to the affairs of the corporation."
The effect of this amendment would seem to restore, to a
large measure, if not entirely, the common law rule, and
would authorize and require the court to exercise its sound
discretion as to whether or not damages are recoverable or
an injunction should lie, if the defence provided for is in-
troduced and maintained. It is, however, unquestionably
within the power of the Legislature to thus amend the sta-
tute. See Shea v. Parker, supra.
I am accordingly of the opinion that the bill, if enacted,
would be constitutional.
I
82 opinions of the attorney-general.
Constitutional Law — Criminal Cases — Public Trial.
The right of persons accused of crime to have a public trial has always been recog-
nized in this Commonwealth.
An act providing that the public be excluded from the trial of all criminal cases,
or of all cases involving moral turpitude, would be unconstitutional.
Under certain circumstances, and in certain cases, the general public may be
excluded.
An act providing that the general public be excluded from the trial of criminal cases
involving morals or chastity, where a minor is the person upon whom the
crime has been committed, would be constitutional.
Governor. You TequGst Hie to consider House Bill No. 1219, entitled
March^23. "An Act to protect witnesses under the age of seventeen
at trials for certain crimes."
The proposed bill is in effect a limitation of the right of
persons accused of certain crimes to a public trial. This
right is one of the most important safeguards in the prose-
cution of persons accused of crime. It exists for the pro-
tection of the accused; it enables the public to see that he
is fairly dealt with and not unjustly condemned; it acts as
a security for trustworthiness and completeness of testimony ;
and it keeps his triers, court, jury and counsel, alive to a
strict conscientiousness in the performance of their duty.
This right, together with the right of trial by a jury of
one's peers, to be informed of the nature of the accusation,
to be confronted with the witnesses against him, to be heard
fully in his own defence, to have compulsory process for
obtaining witnesses in his favor, and to refuse to furnish
evidence against himself, is the outgrowth of reforms
brought about as a result of many grave abuses in England
in the administration of criminal law, and became a part
of the Constitution of the United States and of practically
every State in the Union.
As far back as 1649 this right was claimed in England by
a defendant placed on trial for treason. Lithurne's Trial,
4 How. St. Tr. 1269, 1273; Cornish's Trial, 11 How. St.
Tr. 460 (1685).
In the case of Daubney Cooper, 10 B. C. 237, 240, the
court said : —
JAY R. BENTON, ATTORNEY-GENERAL. 83
We are all of the opinion that it is one of the essential qualities of a
court of justice that its proceedings should be public.
Though there is no express provision in the Constitu-
tion that persons accused of crime shall have a right to
public trial, this right has always been recognized in this
Commonwealth and accorded to persons accused of crime.
Article XII of the Declaration of Rights provides, in part : —
. . . And no subject shall be arrested, imprisoned, despoiled, or de-
prived of his property, immunities, or privileges, put out of the protec-
tion of the law, exiled, or deprived of his life, liberty, or estate, but by
the judgment of his peers, or the law of the land. . . .
The court has held that "the law of the land" made an
indictment or presentment by a grand jury essential to the
validity of a conviction in case of prosecution for felonies.
Jo7ies V. Robhins, 8 Gray, 329. The secrecy of grand jury
proceedings has been held to be included within the mean-
ing of the term "law of the land." Commonwealth v. Harris,
231 Mass. 584; Opinion of the Justices, 232 Mass. 601. At
page 604 of the Opinion the justices said: —
Mere rules of procedure practised by our ancestors at the time of the
adoption of the Constitution did not become an inherent part of due
process. But no change "can be made which disregards those funda-
mental principles, to be ascertained from time to time by judicial action,
which have relation to process of law and protect the citizen in his private
right, and guard him against the arbitrary action of government." Twm-
inq V. New Jerseij, 211 U. S. 78, 101.
An act providing that the public be excluded from the
trial of all criminal cases would, in my opinion, be repug-
nant to article XII of the Declaration of Rights, and would
be unconstitutional. The right to a public trial does not,
however, mean that all persons who desire to attend crimi-
nal trials shall in all cases be permitted to do so. Bishop
Crim. Proc. §§ 658, 659. Cooley, in his Constitutional
Limitations, 7th ed., p. 441, speaking of this right, says: —
84 OPINIONS OF THE ATTORNEY-GENERAL.
The requirement is fairly observed if, without partiaUtj'^ or fa^'oritism,
a reasonable proportion of the public is suffered to attend, notwithstand-
ing that those persons whose presence could be of no ser\nce to the ac-
cused, and who would only be drawn thither by a prurient curiosity, are
excluded altogether.
The grounds generally recognized as justification for the
exclusion of the general public have been the danger of
overcrowding the court room, the risk of violence or brawls,
the maintenance of order and decorum in the court room,
and the protection of the public morals, especially the morals
of the young. People v. Swafford, 65 Cal. 223; People v.
Kerrigan, 73 Cal. 222; People v. Hall, 51 N. Y. App. 57;
Grimmett v. State, 22 Tex. App. 36; State v. Brooks, 92 Mo.
542. This is the general rule, though not recognized in
some jurisdictions. See People v. Murray, 89 Mich. 276;
People V. Y eager, 113 Mich. 228. In the latter case the
court held invalid an act of the Legislature which pro-
vided : —
Whenever it shall appear that, upon the trial of any cause, evidence of
Ucentious, lascivious, degrading, or peculiarly immoral acts or conduct
will probably be given, the judge presiding at such trial may, in his dis-
cretion, require and cause every person, except those necessarily in at-
tendance thereon, to retire and absent himself or herself from the court
room during such trial, or any portion thereof.
In some States, by statute the court is given power to
exclude the general public in cases where the evidence is
vulgar and obscene and would tend to operate injuriously
to the public morals, and in cases which relate to improper
acts of the sexes, including such crimes as rape, assault with
intent to rape, seduction, adultery, bastardy and divorce.
Georgia Code (1895), § 5296; Utah Rev. Stat. (1898),
§ 696; Wis. Stat. (1898), § 4789.
In this Cominonwealth the courts have frequently, on
motion of counsel or on their own initiative, in the interest
of good morals and decency, and in order to maintain proper
order and decorum in the court room, excluded the general
JAY R. BENTON, ATTORNEY-GENERAL. 85
public from the trial of cases. By statute in this Common-
wealth the court is given discretionary power to exclude the
general public in cases where the defendants are children
under seventeen years of age, and minors, unless their
presence is necessary either as parties or as witnesses, must
be excluded. G. L., c. 119, § 65. The court may also ex-
clude minors as spectators from the court room during the
trial of any cause, civil or criminal, if their presence is not
necessary as witnesses or parties. G. L,, c. 220, § 13.
The test in all cases where this general rule is recognized
is its reasonableness under the particular circumstances,
both as to the class of persons excluded and as to the grounds
for exclusion.
The proposed bill is doubtless intended to be in the inter-
est of public morals, and to protect minors against being
compelled to testify in public in cases where the evidence
would involve their morals or chastity, would be vulgar
and obscene, and would tend to degrade the person testi-
fying. Were it in terms Umited solely to such cases, I am
of the opinion that it would come within the general rule
and would be constitutional. The proposed bill, however,
goes much farther in that it includes all crimes involving
moral turpitude. "Moral turpitude," as legally defined, in-
cludes everything done contrary to justice, honesty, mod-
esty or good morals. It includes every act of baseness,
vileness or depravity in the private and social duties which
a man owes to his fellow^ men or to society in general, con-
trary to the accepted or customary rule of right and duty
between man and man.
In many such cases none of the recognized exceptions to
the right of a defendant to a public trial could possibly ob-
tain. In many of them, as in larceny, neither the protec-
tion of pubhc morals nor of the witness could possibly war-
rant the exclusion of the public. To deny defendants a
public trial under such circumstances, because the com-
plainant is a child under seventeen years of age, would not
be justified.
86
OPINIONS OF THE ATTORNEY-GENERAL.
I am therefore of the opinion that the proposed bill, if
enacted, would be unconstitutional. If the bill were
amended by striking out the words ''or other crime involv-
ing moral turpitude," and inserting in place thereof the
words "or other similar crimes," the bill, if enacted in that
form, would, in my opinion, be constitutional.
To the Com-
missioner of
Corporations
and Taxation.
1923
March 24.
Taxation of Corporations — Interpretation of
Statute — "Net Income."
Under the Federal Revenue Act of 1921, "net losses," as defined by section 204,
are not deductible from "gross income" under sections 233 and 234, but are
deductible from "net income" as defined by section 232.
"Net income," as defined by G. L., c. 63, § 30, par. 5, as amended by St. 1922,
c. 302, means, with the modifications there specified, the net income required
to be returned to the Federal government before the deduction of any sum
as an allowance for net losses, and such losses are therefore not deductible
under the corporation tax laws.
You request my opinion whether in determining "net
income," as defined in G. L., c. 63, § 30, par. 5, as amended
by St. 1922, c. 302, "net losses," as defined in section 204
of the Federal Revenue Act of 1921, are deductible.
G. L., c. 63, § 30, par. 5, as amended by St. 1922, c. 302,
is as follows : —
5. "Net income," except as otherwise provided in sections thirty-
four and thirty-nine, the net income for the taxable year as required to be
returned by the corporation to the federal government under the federal
revenue act of nineteen hundred and eighteen or the federal revenue act
of nineteen hundred and twenty-one, whichever of said acts may be ap-
plicable, and, in the case of a domestic business corporation, such interest
and dividends, not so required to be returned as net income, as would
be taxable if received by an inhabitant of this commonwealth; less, both
in the case of a domestic business corporation and of a foreign corporation,
interest, so required to be returned, which is received upon bonds, notes
and certificates of indebtedness of the United States.
"Net income" of a corporation is defined by section 232
of the Federal Revenue Act of 1921. Said section is as
follows : —
JAY R. BENTON, ATTORNEY-GENERAL. 87
That in the case of a corporation subject to the tax imposed by section
230 the term "net income" means the gross income as defined in section
233 less the deductions allowed by section 234, . . .
''Gross income" of a corporation is defined by section 233,
and section 234 provides for the allowance of deductions to
be made in computing the net income of a corporation.
Section 204 (b) of the Federal Revenue Act of 1921 is as
follows : —
If for any taxable year beginning after December 31, 1920, it appears
upon the production of evidence satisfactory to the Commissioner that
any taxpayer has sustained a net loss, the amount thereof shall be de-
ducted from the net income of the taxpayer for the succeeding taxable
year; and if such net loss is in excess of the net income for such succeed-
ing taxable year, the amount of such excess shall be allowed as a deduc-
tion in computing the net income for the next succeeding taxable year;
the deduction in all cases to be made under regulations prescribed by the
Commissioner with the approval of the Secretary.
Article 1602 of Regulations 62, 1922 edition, provides, in
part, as follows : —
A taxpayer sustaining a "net loss" such as set forth in section 204, for
any taxable year ending after December 31, 1920, may file a claim there-
for with his return for the subsequent taxable year. ... If the evidence
furnished satisfies the Commissioner that the taxpayer has sustained a
"net loss" the amount of such net loss may be deducted from the net
income of the taxpayer for the succeeding taxable year and if such net
loss is in excess of the net income for such succeeding taxable j'^ear the
amount of such excess shall be carried over and credited against the
net income for the next succeeding taxable year.
It is, in my opinion, plain that "net losses," allowed as a
deduction by section 204, paragraph (b), are deducted not
from the gross income but from the net income, and that
"net income," as defined by section 232, includes no de-
duction for such net losses. The net income, therefore,
which is referred to in G. L., c. 63, § 30, par. 5, as amended
by St. 1922, c. 302, is the net income which is required to
OPINIONS OF THE ATTORNEY-GENERAL.
be returned by the corporation to the Federal government
under the Federal Revenue Acts before the deduction of
any sum as an allowance for net losses.
March 26.
Constitutional Law — Jurisdiction over Non-resi-
dents — Operation of Motor Vehicles within
THE Commonwealth by Non-residents.
A statute providing that the operation of a motor vehicle within the Common-
wealth by a non-resident shall be deemed equivalent to an appointment of
the Registrar of Motor Vehicles as an attorney upon whom service of process
may be made in any action growing out of an accident or collision in which
such non-resident may bo involved while operating a motor vehicle within
the Commonwealth, would be constitutional.
committ'^'e"on ^^^ have asked my opinion as to whether a proposed law,
*^''{923''''""' entitled "An Act further regulating the right of non-resi-
dents to operate motor vehicles within the Commonwealth,"
would be constitutional.
The proposed act provides, in substance, that the operat-
ing of a motor vehicle within the Commonwealth by a non-
resident shall be deemed equivalent to an appointment by
such non-resident of the Registrar of Motor Vehicles as an
attorney upon whom service of process may be made in
any action growing out of an accident or collision in which
such non-resident may be involved while operating a motor
vehicle within the Commonwealth.
In the case of Kane v. New Jersey, 242 U. S. 160, decided
in 1916, the Supreme Court of the United States held con-
stitutional a provision of a New Jersey statute regulating
the operation of motor vehicles which provided that a non-
resident owner of a motor vehicle must file with the Secre-
tary of State an instrument constituting the Secretary of
State an attorney upon whom process might be served in
any action caused by the operation of such motor vehicle
within the State. In delivering the opinion of the court
Mr. Justice Brandeis said : —
JAY R. BENTON, ATTORNEY-GENERAL. 89
We know that ability to enforce criminal and civil penalties for trans-
gression is an aid to securing observance of laws. And in view of the
speed of the automobile and the habits of men, we cannot say that the
Legislature of New Jersey was unreasonable in believing that ability to
establish, by legal proceedings within the State, any financial liability
of nonresident owners, was essential to public safety. There is nothing
to show that the requirement is unduly biu'densome in practice. It is
not a discrimination against nonresidents, denying them equal protection
of the law. On the contrary, it puts nonresident owners upon an equality
with resident owners.
The proposed act differs from the New Jersey statute with
regard to the feature under consideration in two respects
only, — first, in that it does not provide for the actual filing
of a power of attorney by non-resident operators, but de-
clares that the operation of a motor vehicle within the Com-
monwealth by a non-resident shall be deemed the equiva-
lent of such action by him; and second, in that it applies
to any non-resident operating a motor vehicle within the
Commonwealth, irrespective of whether or not he is the
owner thereof.
In the case of foreign corporations doing business within
a State it has been repeatedly held that they have thereby
consented to be sued in the courts of that State upon causes
of action arising out of the business done by them within
its borders. This is irrespective of whether there was any
actual consent by them to such jurisdiction, and irrespec-
tive also of whether the particular statute involved required
the filing of a power of attorney by the corporation or merely
declared that doing business within the State should be
deemed equivalent to the filing of such an instrument.
Lafayette Ins. Co. v. French, 18 How. 404. It would seem
no more difficult to apply this doctrine of implied consent
to an individual non-resident than to a foreign corporation.
The reasoning of the Supreme Court in Kane v. New Jersey,
supra, does not suggest that the constitutionality of the
provision in the New Jersey statute depended in any way
upon the fact that it did not include all non-residents operat-
90 OPINIONS OF THE ATTORNEY-GENERAL.
ing a motor vehicle upon the highways of the State, but
was restricted to non-resident owners.
I am accordingly of the opinion that the proposed act,
if enacted into law, would be constitutional.
State Employee — Removal — Hearing — Veteran at
State Infirmary — Civil Service.
The services of a State employee who is a veteran, but whose employment has not
been approved by the board of trustees of the State Infirmary as required by
G. L., c. 122, § 1, and who is not employed as the result of an appointment
under civil service provisions, may legally be discontinued without hearing.
m?88*i^on?r°^" ^y opiuion has been requested as to whether or not the
^''*i923^'''^^'^''' superintendent of the State Infirmary has the right to dis-
March_27. coutinue the services of an individual who is a veteran, whose
employment has not yet been approved by the board of
trustees of the infirmary, as required by G. L., c. 122, § 1,
and who is not employed as the result of an appointment
under civil service provisions.
G. L., c. 122, § 1, provides, in part, as follows: —
The trustees (of the state infirmary) shall appoint a superintendent
of the state infirmary . . . All other officers and employees shall be
appointed by the superintendent subject to the approval of the trustees,
who shall fix the compensation in each case.
Not having received the approval of the trustees under
this section, the man in question may be removed without
a hearing unless he comes within the provisions of G. L.,
c. 31, § 26, which, so far as pertinent to the present ques-
tion, reads as follows : —
No veteran holding office or employment in the pul^lic service of the
commonwealth . . . shall be removed . . . except after a full hearing
of which he shall have at least seventy-two hours' written notice, with a
statement of the reasons for the contemplated removal. . . . The hear-
ing in case of a state employee shall be before the board of conciliation
and arbitration, . . .
JAY R. BENTON, ATTORNEY-GENERAL. 91
From the information furnished me it does not appear
that the man in question has passed the civil service exami-
nation or applied as a veteran for appointment without an
examination; and he was not appointed under the civil
service provisions relating to veterans.
The statute referred to, G. L., c. 31, § 26, was designed to
protect only those persons who were appointed under the
civil service law as veterans. As was said by Morton, J.,
in Ayers v. Hatch, 175 Mass. 489, 490: —
It (the statute) was intended to prevent the removal or suspension or
transfer without his assent and without a full hearing of a veteran who
had been appointed under the statutes and rules relating to the civil
service.
The fact that the employee in the case at hand happens
to be a veteran does not bring him within the protection of
the statute. Bates v. Selectmen of Westfield, 222 Mass. 296.
Accordingly, in my opinion, the employment of the man
in question may be discontinued without a hearing.
Taxation — Tax on Motor Vehicles.
A statute purporting to impose an excise tax on motor vehicles, measuring the
tax by a percentage of their list prices and exempting them from local prop-
erty taxation, would he unconstitutional because the tax in its essence would
be a tax upon the mere ownership of property, which would not be propor-
tional.
You have submitted for my consideration a proposed bill, Jo the House
^ r- J- 7 Committee on
set out in Appendix W of House Document No. 1240, en- "^^^^f""-
titled "An Act to provide an excise tax on motor vehicles." ^pni^.
The bill contains provisions material to the present inquiry
as follows: It provides by section 7 for the levying of ex-
cises on motor vehicles owned or controlled by inhabitants
of the Commonwealth or by persons or partnerships having
a regular place of abode or business therein, or used therein
in the business of corporations, measured by a percentage of
the makers' list prices of such motor vehicles, to be paid to
92 OPINIONS OF THE ATTORNEY-GENERAL.
the treasurer of each city and the clerk of each town. By
section 2 payment of such excise is required to be made
before the motor vehicle can be registered. In section 1
the excise is said to be in lieu of a local property tax, and
motor vehicles with respect to which the excise has been
paid are exempt from taxation under G. L., c. 59. The bill
provides in section 8 that moneys received from such excises
shall be used for the general purposes of the city or town.
You ask my opinion whether the proposed bill would be
constitutional.
To be constitutional the bill must be based on the right
to exercise one of the two following powers granted to the
General Court by Mass. Const., c. I, § I, art. IV: —
... to impose and levy proportional and reasonable assessments,
rates, and taxes, upon all the inhabitants of, and persons resident, and
estates lying, within the said commonwealth; and also to impose and
levy reasonable duties and excises upon any produce, goods, wares, mer-
chandise, and commodities, whatsoever, brought into, produced, manu-
factured, or being within the same; . . .
The provisions of the bill show that it is not intended
thereby to lay a tax upon property within the first of the
two clauses quoted. Regarded as a tax on property, the
proposed tax would clearly be invalid because not propor-
tional. It would not be proportional because it would be
imposed upon certain property at a rate different from that
at which other property in the Commonwealth is taxed.
Portland Bank v. Apthorp, 12 Mass. 252, 255; Oliver v.
Washington Mills, 11 Allen, 268, 275; Gleason v. McKay,
134 Mass. 419, 423, 424; Opinion of the Justices, 195 Mass.
607; Opinion of the Justices, 208 Mass. 616, 618; Opinion
of the Justices, 220 Mass. 613, 620-623.
The bill would therefore be unconstitutional unless it
could be supported as an exercise of the power granted by
the second clause, "to impose and levy reasonable duties and
excises upon any produce, goods, wares, merchandise, and
JAY K. BENTON, ATTORNEY-GENERAL. 93
commodities, whatsoever, brought into, produced, manu-
factured, or being within" the Commonwealth.
The question of the meaning and application of this clause
was carefully considered by the justices in Opinion of the
Justices, 196 Mass. 603, and their opinions were divergent.
The chief justice and two associate justices in their opinion
said (p. 622) : —
The power to levy excise taxes has been much restricted by our Con-
stitution. Such taxes can no longer be levied upon the mere ownership
of property. Taxation upon property is provided for in the earlier clause
of the Constitution, and it must be proportional upon all property alike.
Excise taxes upon "produce, goods, wares or merchandise" can be im-
posed only when these articles are introduced, produced, manufactured,
sold or used in a way of which the State may take cognizance, as having
some relation to the government or affecting the public interests.
Three of the other justices thought that the power was
broader, including the laying of imposts on domestic goods
as property. Holding this view, they reached an opposite
conclusion on the question submitted to them. The present
chief justice, in a separate opinion, agreed with that con-
clusion; but with respect to the extent of the application
of the clause under consideration he evidently was in agree-
ment with the opinion expressed in the quotation above.
His view on that matter is made plain in more recent opin-
ions to which reference is hereinafter made.
The question has been considered in other cases. In
Portland Bank v. Apthorp, 12 Mass. 252, 256, the court
said : —
The term excise is of very general signification, meaning tribute, cus-
tom, tax, toUage, or assessment. It is hmited, in our Constitution, as
to its operation, to produce, goods, wares, merchandise, and commodities.
This last word will perhaps embrace everything, which may be a subject
of taxation, and has been applied by our legislature, from the earliest
practice under the Constitution, to the privilege of using particular
branches of business or employment, as, the business of an auctioneer,
of an attornej', of a tavern-keeper, of a retailer of spirituous liquors, &c.
94 OPINIONS OF THE ATTORNEY-GENERAL.
Again, in Minot v. Winthrop, 162 Mass. 113, 119, the
court said : —
The excises to which the inhabitants of the Province of Massachusetts
Bay were accustomed were taxes in the nature of Hcense fees for carrying
on certain kinds of business, taxes on the sale of goods, wares, and mer-
chandise, such as intoxicating liquors, tea, coffee, and chocolate, china
ware, etc., and stamp taxes on legal papers. The words "produce, goods,
wares, merchandise . . . brought into, produced, manufactured, or be-
ing" within the Commonwealth, are words of definite meaning . . .
In Opinion of the Justices, 195 Mass. 607, 611, 612, an
opinion was requested whether a statute providing for a
uniform tax of three mills in each dollar of the cash valua-
tion of certain enumerated classes of intangible personal
property and exempting such property from all other taxa-
tion, State and local, would be within the constitutional
power of the General Court. The court answered the
question in the negative. They held that the "mere right
to own and hold property such as is referred to in the ques-
tion cannot be made the subject of an excise tax."
In Opinion of the Justices, 208 Mass. 616, 618, 619, the
same principle was declared. The court stated : —
The authority to levy an excise tax does not include a right to tax the
mere ownership or possession of personal property of every kind. Such
a tax cannot be laid upon money in one's pocket, or on deposit in a bank,
or on money at interest, or on credits of any kind.
The question whether a special tax may be laid upon a
particular class of personal property seems to have been
settled in Opinion of the Justices, 220 Mass. 613. In that
case the justices were asked whether a statute which should
attempt to impose an excise on incomes derived from in-
tangible personal property and exempt such property from
other taxation would be unconstitutional because not pro-
portional. With respect to that inquiry the justices said
(pp. 623, 624) : —
JAY R. BENTON, ATTORNEY-GENERAL. 95
Plainly it is laid as an excise. Such an imposition cannot be sustained
under the clause of the Constitution relating to excises. A tax upon
income from money on deposit or at interest, from bonds, notes or other
debts due, and as dividends from stocks, coupled with exemption from
all other taxation of the principal from which such income flows, is in
substance and effect a tax upon the property from which it is derived. A
tax upon the income of property is in reality a tax upon the property
itself. Income derived from property is also property. Property by
income produces its kind, that is, it produces property and not something
different. It does not matter what name is employed. The character
of the tax cannot be changed by calling it an excise and not a property
tax. In its essence a tax upon income derived from property is a tax
upon the property. This was decided after most elaborate consideration,
with affluent citation of authorities, in Pollock v. Farmers' Loan & Trust
Co., 157 U. S. 429, 581; S. C, 158 U. S. 601. We do not need to review
that ground or to re-state the arguments in its support. It follows that a
tax upon such income is a property and not an excise tax. This point
is covered also by Opinion of the Justices, touching the so-called three-
mill tax, reported in 195 Mass. 607. We adhere to the principles there
stated and to the conclusions there reached.
Shortly after the adoption of the Massachusetts Consti-
tution a carriage tax was laid as an excise in Massachusetts.
St. 1781, c. 17. A tax on carriages was also imposed by
Congress, which was sustained in the case of Hylton v.
United States, 3 Dall. 171, as a tax within the class of ex-
cises, duties and imposts, which, therefore, did not require
apportionment. The reason why it was so regarded, how-
ever, was that it was not levied directly on property because
of ownership thereof, but rather on the use of property.
See Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429,
570-572; S. C, 158 U. S. 601, 623-627; Brushaher v. Union
Pacific R.R. Co., 240 U. S. 1, 14.
I do not, of course, decide that an excise tax cannot be
laid upon motor vehicles. The provisions in the present
law requiring registration of motor vehicles and the pay-
ment of fees therefor (G. L., c. 90, §§ 33, 34) lay excise
taxes. But the proposed tax, in my opinion, coupled with
the exemption from other taxation, is in substance a tax
upon property, and thus unconstitutional according to the
96 OPINIONS OF THE ATTORNEY-GENERAL.
principles stated in the decisions to which I have referred.
1 must advise you, therefore, that, in my opinion, the pro-
posed bill would be unconstitutional because the tax in its
essence would be a tax on property and would not be pro-
portional within the constitutional requirement.
Legacy and Succession Tax — Interests of Non-
resident UNDER Agreements with Massachusetts
Corporations.
Under G. L., c. 65, § 2, property passing by virtue of the exercise Jiy will of a power
of appointment derived from a disposition of property before September 1,
1907, is subject to a succession tax as property passing by the will of the donee
of the power.
A gift of property to one for life and on his death to his executor, to be paid over
as the life beneficiary shall by will direct, gives him a general power to appoint
by will.
A general power of appointment is well executed, unless a contrary intention is
shown, by a general residuary clause in the will of the donee of the power.
The obligation of a Massachusetts corporation on the death of a non-resident to
pay over a sum of money, with accumulated interest, to his executor, where
no trust was intended to be created and no right in any specific property
passed by the will of the deceased, is not an interest in property belonging to
a person not an inhabitant of the Commonwealth which is taxable under
G. L., c. 65, § 1, as amended by St. 1922, c. 403.
Where a Massachusetts trust company receives a fund in trust to invest the prin-
cipal in a general trust fund, and, after the death of a life beneficiary, to paj'
the principal sum and accumulations of income to his executor, to be paid
and distril)uted as he should by will direct, by transferring a proportional part
of the general fund or the value thereof in money at the option of the com-
pany, and the fund is invested accordingly, on the death of the life benefi-
ciary, being a non-resident and leaving a will by which the power of appoint-
ment is exercised, the proportional interest passing thereby in Massachusetts
real estate and mortgages, stock of national banks situated iia Massachusetts
and stock of Massachusetts corporations, in which the general trust fund was
partly invested, was taxable as property belonging to a person not an in-
habitant of the Commonwealth, under G. L., c. 65, § 1, as amended by St.
1922, c. 403.
To the Com- Under certain instruments executed by the New England
missioner of . .
and^Taxation Trust Compauy and by the Massachusetts Hospital Life
Aprifl^ Insurance Company, prior to September 1, 1907, income was
payable to a woman for life and principal was to be distrib-
uted after her death to her executors or administrators.
She died a non-resident of the Commonwealth, after St.
JAY R. BENTON, ATTORNEY-GENERAL. 97
1922, c. 403, took effect, leaving a will, as I am informed,
by which her interest in said principal sums was disposed of.
The agreements with the New England Trust Company
were each entitled "Agreement of Trust" and acknowledged
the receipt of a principal sum, which the company agreed
to manage as a trust fund to be invested with other funds
held upon other trusts. The company agreed to pay to
the beneficiary named her proportional share of the income
for life, and sixty days after her decease to pay the principal
sum and unpaid accumulations of income to her executor,
to be paid and distributed as she should by will direct, or
to her administrator, "by transferring a just and propor-
tional part of the general fund, or the value thereof in money,
to be ascertained and fixed by the directors, at the option
of the company."
The agreements with the Massachusetts Hospital Life
Insurance Company were each entitled "Annuity in Trust,"
and acknowledged the receipt of a principal sum, which the
company agreed to invest. The company agreed to ascer-
tain the income from all property in its possession and, after
deducting expenses and losses, to apportion the net income
pro rata and to pay to the beneficiary her proportion of the
income during her life, with provisions that payment should
be for her separate use, and that the right to receive the
principal sum and interest should be inalienable and not
subject to the claims of creditors; and the company agreed
in sixty days after proof of the decease of the beneficiary
to pay the amount of the principal sum and accumulations
of interest to the executors or administrators of the bene-
ficiary.
The general fund of the New England Trust Company
at the date of the death of the deceased non-resident, of
which the deposits referred to constituted a part, was in-
vested in part in Massachusetts real estate, in part in mort-
gages of Massachusetts real estate, in part in stock of na-
tional banks situated in Massachusetts, and in part in stock
of Massachusetts corporations. The general fund of the
98 OPINIONS OF THE ATTORNEY-GENEEAL.
Massachusetts Hospital Life Insurance Company was also
invested in part in each of the above-named four classes of
property.
You ask my opinion whether, under these circumstances,
real estate or any interest in real estate within this Common-
wealth, or stock of Massachusetts corporations or of na-
tional banks, belonged to the deceased non-resident at the
date of her death so as to be subject to inheritance tax
under G. L,, c. 65, § 1, as amended by St. 1922, c. 403.
Said section, as amended, is as follows : —
All property within the jurisdiction of the commonwealth, corporeal
or incorporeal, and any interest therein, belonging to inhabitants of the
commonwealth, and all real estate within the commonwealth or any
interest therein and all stock in any national bank situated in this com-
monwealth or in any corporation organized under the laws of this com-
monwealth belonging to persons who are not inhabitants of the common-
wealth, which shall pass by will, or by laws regulating intestate succession,
or by deed, grant or gift, except in cases of a bona fide purchase for full
consideration in money or money's worth, made in contemplation of the
death of the grantor or donor or made or intended to take effect in pos-
session or enjoyment after his death, and any beneficial interest therein
which shall arise or accrue by survivorship in any form of joint owner-
ship in which the decedent joint owner contributed during his life any
part of the property held in such joint ownership or of the purchase price
thereof, to any person, absolutely or in trust, except to or for the use of
charitable, educational or religious societies or institutions, the property
of which is by the laws of the commonwealth exempt from taxation, or
for or upon trust for any charitable purposes to be carried out within the
commonwealth, or to or for the use of the commonwealth or any town
therein for public purposes, shall be subject to a tax at the percentage
rates fixed by the following table:
1. G. L., c. 65, § 2, provides, in part, as follows: —
Whenever any person shall exercise a power of appointment, derived
from any disposition of property made prior to September first, nineteen
hundred and seven, such appointment when made shall be deemed a dis-
position of property by the person exercising such power, taxable under
section one, in the same manner as though the property to which such
appointment relates belonged absolutely to the donee of such power, and
had been bequeathed or devised by the donee by will; . . .
JAY R. BENTON, ATTORNEY-GENERAL. 99
Under this section it is clear that property passing by
virtue of the exercise by will of a power of appointment
derived from a disposition of property before September 1,
1907, is taxable under G. L., c. 65, § 1, as amended, as
property passing by the will of the donee of the power.
Minot V. Treasurer and Receiver General, 207 Mass. 588.
2. It may be questioned whether a gift of property to
one for life and on his death to his executor gives to the life
beneficiary a power of appointment. No particular form
of words need be used to confer a power of appointment.
If the instrument shows an intention to give a power of
appointment, one will be implied. It is a necessary infer-
ence that a power of appointment is intended by a gift of
a remainder after a life estate to the life tenant's executor,
since the right to provide by will for the passing of another's
property is, in fact, a power of appointment. In the in-
strument executed by the New England Trust Company ,
the intention is made plain by the further provision that the
principal is to be paid and distributed as the beneficiary
shall by will direct. Bowen v. Dean, 110 Mass. 438; Todd
V. Sawyer, 147 Mass. 570; Sands v. Old Colony Trust Co.,
195 Mass. 575. The deceased had, therefore, a general
power to appoint by will.
I am informed that the will of the deceased contains
specific and pecuniary legacies for the satisfaction of which
her own estate is ample, and a general residuary clause by
which the remainder of her estate is given in trust for the
benefit of her children and their issue. The will indicates
an intention that the property passing to the trustees shall
include the principal sums invested with the New England
Trust Company and the Massachusetts Hospital Life In-
surance Company. It is settled that a general power of
appointment is well executed, in the absence of anything to
show a contrary intention, by a general residuary clause in
the will of the donee of the power. Stone v. Forbes, 189
Mass. 163; Rowland v. Parker, 200 Mass. 204, 207; Shat-
tuck V. Burrage, 229 Mass. 448, 450. In my opinion, there-
2QQ OPINIONS OF THE ATTORNEY-GENERAL.
fore, the property payable to the executors under the instru-
ments passed by virtue of an exercise of the power of ap-
pointment belonging to the deceased.
3. It follows that if the property passing under the in-
struments by virtue of the exercise of the power of appoint-
ment is properly such as is taxable under G. L., c. 65, § 1,
as amended by St. 1922, c. 403, when passing by the will
of a non-resident, then that property is subject to tax.
Whether it is such property depends upon the nature of
the obligations under the instruments of the respective
companies arising upon the death of the Ufe beneficiary.
By the terms of the "Annuity in Trust" executed by the
Massachusetts Hospital Life Insurance Company the obli-
gation of that company on the death of the life beneficiary
is merely to pay over the principal sum deposited, with
accumulations of interest, and is not to distribute any por-
tion of any trust fund. It is true that the return to the
life beneficiary is computed by a pro rata apportionment of
income received from all the property of the company, and
that there are provisions with respect to the receipt of prin-
cipal and income similar to those found in cases of so-called
''spendthrift" trusts. But, on the other hand, there is no
provision that the company shall receive, hold and invest
the principal upon trust, the return to the beneficiary is
denominated ''interest," and the obligation of the company
on the death of the life beneficiary is not to pay over the
principal with all increment which may have accrued to it,
but merely to pay over the amount of the principal sum
with accumulations of interest. Furthermore, the company
is not empowered to do the business of a trustee, but is em-
powered to make all kinds of contracts in which the casual-
ties of life and interest of money are principally involved.
See St. 1818, c. 130, § 6. These facts, in my opinion, show
clearly that a trust was not intended to be created, thati
there was no trust res to which a trust could attach, audi
that no right in any specific property passed by the will of
JAY R. BENTON, ATTORNEY-GENERAL. 101
the deceased. See Foley v. Hill, 2 H. L. Cas. 28; Pratt v.
Tuttle, 136 Mass. 233.
The "Agreement of Trust" executed by the New England
Trust Company, on the other hand, purports to create a
trust. The principal is referred to as a trust fund, and the
company agrees to pay the income to the hfe beneficiary,
and on her decease to pay the principal and unpaid accumu-
lations of income to her executor. It is provided that the
company may invest the principal with other funds, and
you state that in the present instance the principal was
invested in its general trust fund. There is also a provision
that on the termination of the trust the company may pay
the principal fund by transferring a just and proportional
part of the general fund or the value thereof in money.
The amount to be paid over is not the amount of the prin-
cipal when deposited, with .accumulations of income, but
includes any increment or loss which may have accrued
upon the investment of the principal with the general fund.
The company by its charter (St. 1869, c. 182, § 3) was ex-
pressly given the power to receive and hold moneys or
property in trust. The principal seems to have been de-
posited with the intention of establishing a trust, and the
instrument should be construed as providing for the pass-
ing by the will of the deceased of rights in specific property
in which the principal was invested, unless some difficulty
is presented by the provisions for the deposit of the princi-
pal in a general trust fund and the provision that the prin-
cipal may be paid over in money at the election of the
company.
4. There can be no doubt of the general principle that
trustees should not ordinarily mingle funds of different
trusts in one investment. McCullough v. McCullough, 44
N. J. Eq. 313, 316; Perry on Trusts, 6th ed., § 463. But,
on the other hand, where the parties to the creation of
trusts have indicated an intention that the funds of the
trusts shall be mingled, the trusts are not thereby defeated.
See Parkhurst v. Ginn, 228 Mass. 159. Cf. Lowe v. Jones,
102 OPINIONS OF THE ATTORNEY-GENERAL. -
192 Mass. 94. The trust res in such a case is the whole
trust fund, which is to be administered in such a way as to
execute all trusts to which it is subject.
5. The provision that the principal fund may be paid
over by transfer of a part of the general fund or the value
thereof in money, in my opinion, does not make the obliga-j
tion of the company a debt rather than a trust obligation!
to distribute specific property. It is a mere provision for ai
accounting by the trustee. See Davis v. Colburn, 128 Mass.]
377; Cathaway v. Bowles, 136 Mass. 54; Upham v. Draper \
157 Mass. 292. Prior to such settlement, in my opinion^
under this instrument there is a proportional interest in th(
general trust fund passing by virtue of the power.
6. I am therefore of the opinion that an interest in the
fund of the New England Trust Company, by virtue of tht
instruments executed with that company, passed under the
will of the deceased non-resident, and is subject to tax;
but that no taxable interest passed in the funds of the
Massachusetts Hospital Life Insurance Company.
Extradition — Fugitive from Justice — Physical
Presence — Motive.
Before the Governor of an asylum State can lawfully comply with the demand for
extradition, he must find as a fact that the accused is a fugitive from justice.
Physical presence in the demanding State at the time of the commission of the
offence is necessary to constitute one a fugitive from justice.
The accused cannot be surrendered upon a theory of constructive presence.
The motive of the accused in leaving the demanding State is immaterial.
To constitute one a fugitive from justice it is not necessary that he should have
done within the demanding State every act necessary to complete the crime.
To the You have referred to this department for examination
Governor. '^
Aprn^g ^^^ report a requisition of the Governor of Connecticut,
with accompanying papers, for the arrest and extradition
of one , hereinafter called the defendant,
an alleged fugitive from justice charged with the crime of
manslaughter.
JAY R. BENTON, ATTORNEY-GENERAL. 103
The complaint accompanying the requisition charged, in
substance, that the defendant was president and treasurer
of a corporation which conducted a moving picture theatre
in the city of New Haven; that on or about June 1, 1921,
the defendant ordered certain alterations and installations
made in the building; that these alterations and installa-
tions were made in violation of the local ordinances; that
on November 27, 1921, the defendant, knowing that the
alterations were not made in accordance with the local
ordinances, and knowing that the use of the building in its
then condition was dangerous and unlawful, because of non-
compliance with the ordinances, did, by his agents, give a
public show in the theatre; and that fire occurred, and a
member of the audience was fatally burned and died two
days thereafter.
The facts as agreed upon are as follows : —
The defendant, during the whole of the time in question, was and still
is a resident of the Commonwealth of Massachusetts, and was president
and treasurer of a corporation which operated a theatre in New Haven.
On or about June 1, 1921, the defendant was physically present in New
Haven, and personally ordered that alterations and installations be made
in the building. These alterations and installations were made after the
defendant left Connecticut and while he was in Massachusetts. After
the completion of the alterations and installations, the defendant was
again in New Haven, during the month of August, 1921, and was in the
theatre but did not inspect the alterations or installations. The theatre
was used from that time up to and including November 27, 1921, when a
fire occurred on the stage, made rapid progress throughout the building
and destroyed it. A member of the audience was fatally burned and died
as a result of his injuries shortly thereafter. It was conceded that the
defendant was not physically present in New Haven on November 27,
1921, and that he was in New Haven only on or about June 1, 1921, and
once during the month of August, 1921.
The State of Connecticut contends that the alterations
and installations were made "in accordance with his general
directions." The coroner for the County of New Haven,
who held an inquest at the time, made a finding that a con-
ference was held in New Haven on May 30, 1921, between
104 OPINIONS OF THE ATTORNEY-GENERAL.
the defendant, an agent of the corporation and a contractor;
that at the conference "no definite plan was fixed upon"
but that the defendant authorized his agent and the con-
tractor to take the necessary steps for making the altera-
tions, "leaving the practical details to their judgment";
and that the defendant directed the contractor "to take the
necessary action with the building inspector to bring the
proposed changes within his approval."
In the light of the view subsequently expressed, the ques-
tion whether the alterations and installations were made in
accordance with the defendant's general directions or were
made as the coroner found the facts becomes immaterial.
The chief issue is whether or not the defendant is a fugi-
tive from justice. U. S. Const., art. IV, § 2, provides that
a person charged in any State with crime, who shall flee
from justice, and be found in another State, shall, on de-
mand, be delivered up to the State having jurisdiction of the
crime. This provision of the Constitution is not self-exe-
cuting, and requires the action of Congress in that regard.
Keiitucky v. Dennison, 24 How. 66, 104; Hyatt v. Corkran,
188 U. S. 691, 708. Congress did enact a statute, U. S.
R. S., 1901, § 5278 (Comp. Stat, of U. S., 1916, § 10126),
which provides, in part: —
Whenever the executive authority of any State or Territory demands
any person as a fugitive from justice, of the executive authority of any
State or Territory to which such person has fled, and produces a copy of
an indictment found or an affidavit made before a magistrate of any State
or Territory, charging the person demanded witli having committed trea-
son, felony, or other crime, certified as authentic by the governor or chief
magistrate of the State or Territory Jrom whence the person so charged
has fled, it shall be the duty of the executive authority of the State or
Territory to which such person has fled to cause him to be arrested and
secured, and to cause notice of the arrest to be given to the executive
authority making such demand, or to the agent of such authority ap-
pointed to receive the fugitive, and to cause the fugitive to be delivered
to such agent when he shall appear. . . .
1
JAY R. BENTON, ATTORNEY-GENERAL. 105
Before the governor of the asylum State can lawfully
comply with the demand for extradition he must find as a
fact that the accused is a fugitive from justice. Buddy's
Case, 219 Mass. 548, 550; Ex parte Reggel, 114 U. S. 642;
Roberts v. Reilly, 116 U. S. 80; Hyatt v. Corkran, 188 U. S.
691. It is well established that the accused cannot be con-
sidered a fugitive from justice if he was not physically with-
in the demanding State at the time of the commission of the
alleged offence. He cannot properly be surrendered upon
the theory of a constructive presence. Buddy's Case, 219
Mass. 548; Hyatt v. Corkran, 188 U. S. 691; Appleyard v.
Massachusetts, 203 U. S. 222; McNichols v. Pease, 207 U. S.
100; Strasshei7n v. Baily, 221 U. S. 280. To be a fugitive
from justice it is not necessary that the accused should have
left the demanding State with intent to flee from its justice.
If he was in the demanding State at the time the offence was
committed, and thereafter left, no matter for what purpose
or with what motive nor under what belief, he is a fugitive
from the justice of that State. Appleyard v. Massachusetts,
203 U. S. 222; McNichols v. Pease, 207 U. S. 100; Bassing
V. Cady, 208 U. S. 386. Nor is it necessary that the accused
should have done within the State every act necessary to
complete the crime.
In Strassheim v. Baily, 221 U. S. 280, 285, the court
said : —
We think it plain that the criminal need not do within the State every
act necessary to complete the crime. If he does there an overt act which
is and is intended to be a material step toward accomplishing the crime, and
then absents himself from the State and does the rest elsewhere, he be-
comes a fugitive from justice, when the crime is complete, if not before.
In re Cook, 49 Fed. Rep. 833, 843, 844. Ex parte Hoffstot, 180 Fed. Rep.
240, 243. In re William Sultan, 115 No. Car. 57. For all that is neces-
sary to convert a criminal under the laws of a State into a fugitive from
justice is that he should have left the State after having incurred guilt
there, Roberts v. Reilly, 116 U. S. 80, and his overt act becomes retro-
spectively guilty when the contemplated result ensues.
106 OPINIONS OF THE ATTORNEY-GENERAL.
See also, Taft v. Lord, 92 Conn. 539.
Ifc is conceded that the defendant was not in Connecticut
on November 27, 1921, the date when the crime of man-
slaughter is alleged to have been committed. He cannot,
therefore, be considered a fugitive from justice unless his
act in ordering the alterations and installations on or about
June 1, 1921, or his presence in the theatre in August with-
out inspecting the alterations or installations, or both, con-
stituted an overt act which was, and was intended to be,
a material step toward accomplishing the crime of man-
slaughter.
It is nowhere suggested that the defendant caused the
fire to be set, or contemplated on the occasion of either of
his visits to New Haven that a fire should be started. The
complaint does not so charge or intimate. There is no
direct causal connection between the violation of the local
ordinances and the death of a spectator at the theatre.
The death was neither a natural nor a probable consequence
of such violation. It was caused by fire, for which the de-
fendant was not responsible, and at a time when the de-
fendant was not in New Haven and was not personally
operating the theatre. The defendant's order to make alter-
ations and installations in the building, even if they were
made in violation of the local ordinances, was not a material
step in the commission of the crime of manslaughter.
Gross misconduct, gross negligence and wilful and un-
lawful neglect of duty on the part of the defendant lie at the
foundation of the charge of manslaughter against him.
The fact, if it be a fact, that he violated the city ordinances
is proper evidence on the question of negligence, but is not
in itself one of the acts "which was, or was intended to be,
a material step in accomplishing the crime" of manslaughter.
Commonwealth v. Adams, 114 Mass. 323; Commonwealth v.
Hawkiris, 157 Mass. 551.
I am therefore of the opinion that the defendant was not
in the State of Connecticut at the time of the commission
of the crime of manslaughter, that he did not do any act
JAY R, BENTON, ATTORNEY-GENERAL. 107
within that State which was a material step in accomplish-
ing that crime, that he therefore is not a fugitive from jus-
tice, and that the request of the Governor of Connecticut
for his extradition should be refused.
On April 12, 1923, in compliance with an order adopted
by the House of Representatives, the Attorney-General
rendered an advisory opinion concerning the then status of
the litigation involving the validity of the national bank
tax, concerning the then status of the remedial legislation
pending in Congress, and gave advice as to whether, pro-
viding there was no change in the situation as it then existed,
there was any legal bar to the collection of the national
bank tax for 1923, and as to what was being done to pro-
tect the interests of the Commonwealth and of the cities
and towns therein, and what further action, if any, was
desirable. As the advisory opinion was printed as House
Document No. 1441 of 1923, it is therefore not reprinted
here.
Justice of the Peace — Notary Public — Residence
IN Massachusetts.
a person is ineligible for appointment as a justice of the peace or a notary public
for Massachusetts unless he is a legal resident of Massachusetts.
You have requested my opinion as to whether a person Q°v*'^rno,
whose legal residence is outside of the Commonwealth may Aprfflo.
be appointed a notary public or a justice of the peace for
Massachusetts.
The office of justice of the peace is one provided for in
the Constitution (c. II, art. Ill; c. II, art. IX). It is a
judicial office. Opinion of the Justices, 107 Mass. 604.
Mass. Const. Amend. IV provides that "notaries public
shall be appointed by the governor in the same manner as
judicial officers are appointed." See Opinion of the Jus-
tices, 165 Mass. 599.
It would seem, with respect to the question of the neces-
108 OPINIONS OF THE ATTORNEY-GENERAL.
sity of residence within Massachusetts, that both offices
stand upon the same footing as that, for example, of justices
of the Supreme Court. No express requirement exists ii
the case of judicial officers that they must be residents oi
citizens of Massachusetts. That such a constitutional'
qualification is to be found by implication, however, would
hardly seem to admit of doubt. It can scarcely be ques-
tioned, I think, that the constitutional offices of the Com-
monwealth have always been and still are open solely to
its own citizens.
■ Article IX of the Declaration of Rights declares that
''all the inhabitants of this commonwealth, having such
qualifications as they shall establish by their frame of gov-
ernment, have an equal right to elect officers and to be
elected, for public employments." In Mass. Const., c. I,
§ II, art. II, occur these words: —
And to remove all doubts concerning the meaning of the word "in-
habitant" in this constitution, every person shall be considered as an
inhabitant, for the purpose of electing and being elected into any office,
or place within this state, in that town, district, or plantation where he
dwelleth, or liath his home.
In commenting upon the significance of these declarations
the Supreme Judicial Court has said {Opinions of the Justices,
240 Mass. 601, 608): —
The words "inhabitants" and "inhabitant" as thus used mean "citi-
zens" and "citizen." All others who are not citizens are excluded from
the scope of the meaning of those words. The words "inhabitants" and
"inhabitant" have this meaning wherever used in the Constitution to
describe the right to vote or to be elected to office. . . .
From the express provision that none except "male inhabitants" or
"male citizens" possessed the right to vote under the Constitution as
well as from unbroken usage, arose the implication that men alone were
eligible for election or appointment to offices created or recognized by the
Constitution. . . . When the fundamental law is silent as to the qualifi-
cations for office, it commonly is understood that electors and electors
alone are eligible. Coole^^ Cons. Law (3rd. ed.), 285. State v. Smith,
14 Wis. 497. Attorney General v. Abbott, 121 Mich. 540. State v. Van
JAY R. BENTON, ATTORNEY-GENERAL. 109
Beek, 87 Iowa, 569, 577. Except in the particulars already pointed out
wherein definite qualifications are established as conditions of eligibility
for office, there has been, under the Massachusetts Constitution and under
Massachusetts custom equaUty among qualified voters as to eligibility
for such offices as are recognized or created by the Constitution.
In my opinion, therefore, a person is ineligible for ap-
pointment as a justice of the peace or a notary pubUc for
Massachusetts unless he is an inhabitant, i.e., a resident of
Massachusetts; and the residence necessary for this pur-
pose is the same as that necessary for citizenship, namely,
a legal residence in the sense of a domicil in Massachusetts.
Constitutional Law — An Act to ascertain the Will
OF THE People — Eighteenth Amendment — Pub-
lic Money.
An act to ascertain the will of the people with reference to the Eighteenth Amend-
ment to the Constitution of the United States, known as the "prohibition"
amendment, and with reference to the Federal statute known as the "Volstead
act," would be constitutional.
Public money can be expended only for a public purpose.
The erection of town houses in which the inhabitants may assemble has been uni-
formly held to be a public purpose.
The right of the people peaceably to assemble and to discuss public topics is not
confined to public meetings.
You have requested my opinion as to the constitutionality cpmmit?eTon
of House Bill No. 314, entitled "An Act to ascertain the xhirdRLding.
will of the people of Massachusetts with reference to the Apriik.
Eighteenth Amendment to the Constitution of the United
States and the enforcement thereof," which reads as fol-
lows : —
Section 1. There shall be submitted to the voters of each congres-
sional district in the commonwealth at the next regular state election two
questions which shall be printed in the following form on the official
ballot to be used at such election: —
1. Shall the senators from this commonwealth and the representative
in congress from this district be requested to support a constitutional
amendment to repeal the eighteenth amendment to the constitution of
the United States known as the "prohibition" amendment?
110 OPINIONS OF THE ATTORNEY-GENERAL.
2. Shall the senators from this commonwealth and the representative
in congress from this district be requested to support amendments of the
federal statute known as the "Volstead act," in order to make legal the
manufacture, transportation and sale of beer and wines having a limited
alcoholic content?
Section 2. The secretary of the commonwealth shall tabulate the
returns of votes upon the aforesaid questions, and shall transmit copies
of such returns by congressional districts to each senator and representa-
tive in congress from this commonwealth. The vote under this act
shall not be regarded as an instruction to said senators and representa-
tives in congress, but shall be regarded as an expression of the opinion
and will of the people of the several congressional districts of this com-
monwealth upon said questions.
By Mass. Const., c. I, § 1, art. IV, the Legislature is
given full power and authority to make, ordain, and estab-
lish, all manner of wholesome and reasonable orders, laws,
statutes, and ordinances, directions and instructions, not
repugnant or contrary to the Constitution, as they shall
judge to be for the good and welfare of the Commonwealth.
See also Stoughton v. Baker, 4 Mass. 522, 529; Common-
wealth V. Alger, 7 Cush. 53, 101.
Is the proposed act repugnant or contrary to the Consti-
tution? Manifestly the bill, if enacted, will involve an ex-
penditure of public money for printing the questions on the
ballot and tabulating the returns of votes. Public money
can be expended only for a public purpose. Lowell v. Bos-
ton, 111 Mass. 454, Mead v. Acton, 139 Mass. 341; Wheelock
V. Lowell, 196 Mass. 220; Salisbury Land & Improvement
Co. V. Commonwealth, 215 Mass. 371 ; Whittaker v. Salem,
216 Mass. 483; Duffy v. Treasurer and Receiver General,
234 Mass. 42, 50. Unless the purpose of ascertaining the
will of the people upon the proposed questions is a public
purpose, the proposed bill, if enacted, would be unconsti-
tutional.
Article XIX of the Declaration of Rights provides : —
The people have a riglit, in an orderly and peaceable manner, to as-
semble to consult upon the common good; give instructions to their
JAY R. BENTON, ATTORNEY-GENERAL. Ill
representatives, and to request of the legislative body, by the way of
addresses, petitions, or remonstrances, redress of the wrongs done them,
and of the grievances they suffer.
This has always been regarded as one of the most valuable
rights of the people.
Article XLVIII, II. Initiative Petitions, § 2, provides
that the right of peaceable assembly shall not be the sub-
ject of an initiative or referendum petition. The First
Amendment of the Constitution of the United States pro-
vides, in part, that Congress shall make no law abridging
the right of the people peaceably to assemble and to peti-
tion the government for a redress of grievances.
Referring to article XIX of the Declaration of Rights, the
court said, in Commonwealth v. Porter, 1 Gray, 476, 477: —
This is recognized as a valuable right secured to the people by the
constitution. . . .
This, like the similar declarations of other rights, essential to a free
government, is expressed in general terms; but it not only gives authority
to the legislature, but makes it their bounden duty, to make suitable
laws from time to time, as the exigencies of the times may require, for
the protection and enjoyment of such rights.
. . . Nothing more concerns the public good, than the election of
good men, in aU respects qualified, to public offices. The extended and
almost unlimited rights of suffrage, secured to the people of this common-
wealth by the constitution and laws, assume and are founded on the right
of voters, to have the fullest and freest discussion and consultation upon
the merits and qualifications of candidates, for their information and the
means of exercising a sound and enlightened judgment in regard to public
men and political measures.
See also Wheelock v. Lowell, 196 Mass. 220, 225.
In Fuller v. Mayor of Medford, 224 Mass. 176, 178, the
court said : —
The purpose (of article XIX of the Declaration of Rights) in general is
to enable the voters to have full and free discussion and consultation
upon the merits of candidates for public office and of measures proposed
in the public interests. Its importance in this respect is of the highest
moment.
112 OPINIONS OF THE ATTORNEY-GENERAL.
The erection of town houses in which the inhabitants may
assemble has been uniformly held to be a public purpose,
for which public money might legally be expended. Whee-
lock V. Lowell, 196 Mass. 220, and cases there cited. At
page 227 the court said : —
It is hard to overestimate the historic significance and patriotic in-
fluence of the pubhc meetings held in all the towns of Massachusetts
before and during the Revolution. No small part of the capacity for
honest and efficient local government manifested by the people of this
Commonwealth has been due to the training of citizens in the forum of
the town meeting. The jealous care to preserve the means for exercising
the right of assembling for discussion of public topics manifested in city
charters by the representatives of the people, whenever providing for the
transition from the town meeting to the city form of local government,
demonstrates that a vital appreciation of the importance of the oppor-
tunity to e.xercise the right still survives. The practical instruction of
the citizen in affairs of government through the instrumentality of public
meetings and face to face discussions may be regarded quite as important
as their amusement, edification or assumed temporal advancement in
waj^s heretofore expressly authorized by statute and held constitutional.
Hubbard v. Taunton, 140 Mass. 467. Morrison v. Lawrence, 98 Mass.
219. Kittredge v. North Brookfield, 138 Mass. 286. Commonwealth v.
Williamstown, 156 Mass. 70. Kingman v. Brockton, 153 Mass. 255.
Attorney General v. Williams, 174 Mass. 476.
It is only by a continuance of intelligent, persistent and honest in-
terest in the cause of good government on the part of the great majority
of citizens that the permanency of our institutions can be secured. Only
by the abiding constancy of such interest will intelligence triumph over
impulse and indifference in public affairs. In no other way can a govern-
ment by free men continue, which shall in fact preserve the blessings of
liberty.
The right of the people peaceably to assemble and to dis-
cuss public topics is not confined to public meetings. Where
public meetings are inadequate for an expression of opinion,
the voter may be given an opportunit}^ to express his opinion
through the medium of the ballot.
In Fuller v. Mayor of Medford, 224 Mass. 176, the charter
of the city of Medford provided that any question of pub-
lic interest, upon request in writing of tweiit3'-five per cent
JAY R. BENTON, ATTORNEY-GENERAL. 113
of the qualified voters, might be placed upon the official
ballot for a municipal election for the purpose of ascertain-
ing the will of the people. The court in that case said, at
page 179: —
It may well have been thought that the machinery for the expression
of an advisory opinion by the voters of a city at a public meeting was
quite inadequate, in view of the inconvenience of gathering at a single
hall a substantial proportion of the citizens, and that this should be
supplemented by giving to any voter the privilege of expressing his view
so that it wotdd be counted. Advisory expressions of public opinion
participated in by large numbers of people may have been deemed lilcely
to be a sufficiently strong incentive to action by city officers. It is no
idle form to secure a definite conception in this form of what the people
think on any subject of general interest.
St. 1913, c. 819 (now G. L., c. 53, §§ 19-22), provides for
the placing of questions of public policy upon the ballot,
upon the fulfillment of certain requirements, for the pur-
pose of instructing the members of the Legislature. St.
1920, c. 560 (now G. L., c. 53, § 18), provides for ascertain-
ing the will of the people under certain circumstances upon
the question whether the ratification of an amendment to
the Federal Constitution is desirable, by placing such ques-
tion upon the official ballot. Both of these acts indicate
the general tendency of legislation to ascertain the will of
the people through the medium of the ballot instead of
through public meetings, in view of the inconvenience of
the latter in many instances under present conditions.
The subject-matter of the questions to be submitted to
the people under the proposed act is one of public interest,
and affects the people generally. In Commonwealth v.
Porter, 1 Gray, 476, 481 (1854), the court said: —
The present case is that of a meeting of citizens assembled in the
meeting-house for the discussion of the subject of temperance. This is
a subject of great pubHc interest, and has, we know, attracted the earnest
attention of the people of this commonwealth, especially with a view to
legislative action. For aught that appears, this was a meeting of people,
and a discussion of the subject of temperance, which actually resulted
114 OPINIONS OF THE ATTORNEY-GENERAL.
in a petition or remonstrance to the legislature, with a view to ameliorate
or alter, or to retain and confirm, the existing law upon the subject of
temperance, and, as such, a meeting held in strict conformity to the
right secured by the constitution.
The fact that the proposed act provides for an expression
of opinion upon an amendment to the Federal Constitution
and to a Federal statute does not affect or alter the situa-
tion, since the question is one of public interest affecting
the inhabitants of this Commonwealth.
The Legislature has very frequently, through resolutions,
memorialized Congress and urged it to enact or refrain from 1
enacting legislation affecting the interests of the inhabi-
tants of this Commonwealth, and has sent copies of such
resolutions to each senator and representative in Congress
from this Commonwealth. In recent years the following
resolutions were adopted:
1920.
(1) Resolution protesting against the passage of a bill by
Congress relative to the importation of lobsters.
(2) Resolution urging Congress to pass an act repealing
and removing all restrictions imposed for the duration of
the war on freedom of speech, freedom of the press, and the
right of the people peaceably to assemble.
(3) Resolution requesting Congress to pass a bill author-
izing the Secretary of Agriculture to establish a forest ex-
periment station in the White Mountain National Forest.
(4) Resolution expressing the hope that the ratification
of the woman's suffrage amendment to the Federal Consti-
tution would not further be delayed, and that every effort
would be made by the legislators of the six remaining States
to ratify the amendment immediately.
(5) Resolution expressing the hope that Congress would
pass a resolution deprecating any interference on the part
of the United States in respect to controversies concerning
the boundaries of Italy and prohibiting the use of Federal
troops in territory claimed by Italy.
JAY R. BENTON, ATTORNEY-GENERAL. 115
1921.
(1) Resolution stating that the General Court is in favor
of the creation of a federal agency to regulate the production
and price of coal.
(2) Resolution urging Congress to reject all measures
which depart from or infringe upon the traditional policy
of the preservation of national parks.
1922.
(1) Resolution urging the members of Congress from this
Commonwealth to use their influence with the Federal
government to secure the transfer, for repairs, to the Boston
Navy Yard of the steamship "Leviathan," property of the
Federal government.
(2) Resolution urging Congress to pass appropriate legis-
lation to regulate further the use of narcotic drugs.
(3) Resolution urging the Senate of the United States to
pass the Dyer Anti-Lynching Bill, so called.
(4) Resolution petitioning Congress to propose an amend-
ment to the Federal Constitution which would give Congress
the power to regulate the hours of labor of women and
minors.
1923.
(1) Resolution favoring the passage by Congress of legis-
lation placing an embargo on coal.
(2) Resolution urging Congress to enact legislation which
would provide adjusted compensation for men and women
who served in the Army, Navy and Marine Corps of the
United States during the World War.
(3) Resolution favoring the passage of legislation to pro-
vide for the preservation and protection of public records,
and for the erection of a fireproof building at Washington
to serve as a repository of all national archives.
(4) Resolution entitled ''In favor of a large proportion of
funds for work at the Boston Navy Yard," which requested
the Navy Department to assign a large share of the work
of the department to the Boston Navy Yard.
116 OPINIONS OF THE ATTORNEY-GENERAL.
In view of the foregoing, I am of the opinion that the ex-
penditure of public money involved in the carrying of the
proposed bill into effect would be a legal expenditure for a
public purpose, and that the proposed bill, if enacted, would
not be repugnant or contrary to the Constitution, and would
be constitutional.
You have further requested my opinion whether the pro-
posed bill, if enacted, would be constitutional if changed in
section 1 by striking out all after the word "act" in line
fourteen and inserting in place thereof the words "so chang-
ing its provisions, conformably to the Eighteenth Amend-
ment to the Constitution of the United States, as to per-
mit the manufacture, transportation and sale, for beverage
purposes, of beer, wine and other beverages containing a
greater percentage of alcohol than is at present permitted
by said provisions." In my opinion, the proposed bill so
changed, if enacted, would be constitutional.
Public Work — Contract with Two or More Cor-
porations, ACTING JOINTLY PARTNERSHIP.
A contract for public work may not legally be made by the Commonwealth with
two or more corporations, acting jointly.
Two or more corporations may not enter into a partnership.
To the Com- You state that "the low bid on a contract was presented
missioner of
P^]'j}^''3 Works. ^]^jg week by the Alco Contracting Company, Inc., and the
Aprn26. Middlesex Construction Company, Inc., as joint bidders.
We have not previously had occasion to execute a contract
under conditions where two corporations were appearing as
partners, and are not sure that such an arrangement would
be legal," — and ask me two questions: —
First: Can a contract legally be made between the Commonwealth
and the Alco Contracting Company, Inc., and the Middlesex Construc-
tion Company, Inc., acting jointly as parties of the second part?
Second: If your reply to the first question is in the negative, can a
JAY R. BENTON, ATTORNEY-GENERAL. 117
contract legally be made with either of said corporations under their
joint proposal of April 17, 1923?
You further advise me that the board of directors of the
Alco Contracting Company, Inc., on April 4, 1923, passed
a vote, of which the following is a copy : —
At a meeting of the Board of Directors of Alco Contracting Co., Inc.,
held this fourth day of April, 1923, all of the directors being present, Mr.
Paul Caputo, President, Matthew Cummings, Treasurer, Andrew Di
Pietro, it was
Voted, That the Board of Directors be authorized to form a partner-
ship with the Middlesex Construction Co., Inc., whenever in their judg-
ment it is advisable in handling large contracts.
A true copy.
Attest: Matthew Cummings, Clerk.
Also that the directors of the Middlesex Construction
Company, Inc., passed a similar vote.
I am further advised that in the proposal signed jointly
by these companies the word "partnership" is not used;
it being simply a proposal signed by both companies, pre-
sumably by the proper officer of each.
For reasons that will appear later, there seems to be no
occasion for a precise and definite answer to your first ques-
tion, but I deem it advisable to point out to you certain
propositions of law in connection therewith.
"It is familiar law that a corporation cannot enter into a
partnership" (Willimns v. Johnson, 208 Mass. 544, 552),
so that, if the entering into this contract generally by these
corporations has the elements of a partnership, it may not
legally be done, and such a contract would be ultra vires,
and, if executed, unenforceable. Whether in this particu-
lar case it does amount to a partnership obligation, I am not
called upon to decide ; but I point out to you that apparently
both companies felt they were entering into a partnership
obligation, which is evidenced by the vote passed by each.
Upon the facts in this particular case a court might well
hold that the arrangement was a partnership matter, even
118 OPINIONS OF THE ATTORNEY-GENERAL.
though for a temporary purpose, and ultra vires. See Kelly
V. Biddle, 180 Mass. 147, and the comment on that decision
in Williams v. Johnson, supra, p. 552.
There is some authority, however, holding that while a
corporation may not enter into a partnership, it may enter
into a joint venture. See Thompson on Contracts, 2d ed.,
§ 2337; Salem-Fairfield Telephone Association v. McMahon,
78 Ore. 477.
But there is no Massachusetts decision taking this view,
and the language of the court in Williams v. Johnson, supra,
p. 552, would seem to indicate that the Massachusetts court
would hold that such a contract as this came within the
condemnation of the rule laid down in that case. In so far,
therefore, as an answer to your first question is necessary
in view of the circumstances which have since been called
to my attention, I advise you that such a contract should
not be entered into by any department of the Common-
wealth, in view of the cases above cited.
I am further advised, however, that this particular bid
is considered by your department as most advantageous to
the Commonwealth; also, that one of the corporations in-
volved is willing to waive any rights it may have in the bid
and, so far as it may do so, assent to the awarding of the
contract to the other corporation. I am also advised that
this is a work in which it is not necessary, as a matter of
law, for your department to advertise for bids; that it
might award the contract without bids; and that it might
reject all bids now and award the contract without calling
for new ones. In the light of these facts, therefore, I come
to the answer to your second question, and advise you that
it would seem to rest within your sound discretion to grant
this contract to one of the two corporations mentioned upon
the terms as outlined in the proposal. In such case there
should be a new proposal signed by the single company and,
for the purposes of your record, a proper waiver by the
other company of any right it may possibly have in the
premises. In so deciding, I do not intend that any prece-
JAY R. BENTON, ATTORNEY-GENERAL. 119
dent be established or any rule of law laid down as authority
for such course in a situation where the contract is required
by law to be let on competitive bids after advertisement.
Constitutional Law — Venue of Crimes —
Jurisdiction — Vicinity.
The word "vicinity," as used in article Xlll of the Declaration of Rights, is not
synonymous with "county."
Common law courts have inherent power to order a change of venue to secure an
impartial trial.
An act providing that a defendant shall not be discharged for want of jurisdiction
if the prosecuting ofiBcer, before trial, petitions for leave to proceed, stating
that he is in doubt as to the court's jurisdiction, and the court orders him to
proceed, and the evidence at the trial discloses that the crime was committed
without the county or territorial jurisdiction of the court, is constitutional.
You request me to consider House Bill No. 1419, entitled 2°^*^rnc
"An Act relative to the venue of crimes in general." .Aiay\.
Article XIII of the Declaration of Rights provides : —
In criminal prosecutions, the verification of facts, in the vicinity where
they happen, is one of the greatest securities of the life, liberty, and
property of the citizen.
The word "vicinity," as used in that article, is not synon-
ymous with "county," nor is the article affirmative of the
right of a citizen to be tried in any particular county.
In Commonwealth v. Parker, 2 Pick. 550, 553-554, the
court said : —
The word vicinity is not technical, with a precise legal meaning, as the
word county or the ancient word visne, vicinage, would be held to be.
And considering that the declaration of rights was framed by men well
acquainted with the common law, as well as with the colonial and pro-
vincial regulations and practice of Massachusetts, we may well presume
that the use of a common and popular, instead of a technical word, in
this article of the declaration, was not accidental. The form in which
the principle is expressed is also worthy of consideration. It is not pro-
hibitory of a trial of an offence, in any other county than that in which
it happened; nor is it affirmative of a right in the citizen to be tried in
120 OPINIONS OF THE ATTORNEY-GENERAL.
any particular county. It is merely declaratory of the sense of the people,
that the proof of facts in criminal prosecutions should be in the vicinity
or neighbourhood where they happen. . . .
... It may be considered questionable whether those who framed
the bill of rights intended to tie the hands of the legislature, with the
history of parliamentary proceedings before them, from which they could
perceive the expediency, if not the necessity, of leaving the legislature
without any other restriction than that which would be derived from re-
spect to the declared sense of the people, that trials in the vicinity were
always desirable, when they could be had there without great incon-
venience to the public. It must have been known also, that the prin-
ciple of the common law limiting the trials of crimes to the county within
which they were committed, had been necessarily departed from by our
ancestors in the early history of the country; for all capital felonies were
cognizable only in the Court of Assistants, which court held its sessions
only in Boston for the whole colony, and it was expressly ordained that
the jurors attending this court should be summoned from the counties
of Suffolk and Middlesex; so that in whatever other county a capital
offence was committed, it was necessarily tried in the county of Suffolk.
Vid. Ancient Charters and Col. Laws, &c., pp. 90, 144.
After referring to several Colonial statutes, the court also
said, at page 554 : —
This being the state of things at the time of the adoption of the con-
stitution, and the probable creation of new counties, whose population
might not justify the sending of the Supreme Court into them, being
probal)ly foreseen, it may well be supposed that the wise men who framed
the declaration of rights, when they proposed to the people to declare,
that in "criminal trials, the verification of facts in the vicinity where they
happen, is one of the greatest securities of the life, liberty and property
of the citizen," intended to hold out a caution to all future legislatures to
regard this principle, in their laws concerning crimes and punishments,
but not to prohibit them from causing trials to be had in adjoining coun-
ties when the public interest should demand it. And that this has been
the coniemporaneous, practical and uniform construction of this article by
the legislature and courts of law, from the adoption of the constitution down
to the present period, may be safely inferred from many statutes which have
passed, and judicial decisions which have taken place, in relation to this
subject.
The court, after referring to various statutes enacted be-
tween 1782 and 1795, providing for the trial of criminal
JAY R, BENTON, ATTORNEY-GENERAL. 121
cases outside of the county in which the crime had been
committed, further said, at page 555 : —
These frequent acts of the legislature abundantly show the public
sense of the intention of the people in the declaration referred to; and the
judicial trials which have taken place out of the county in which the
offences were committed have been numerous. Until the recent act,
giving the Court of Common Pleas, when sitting in the county of Nan-
tucket jurisdiction of all crimes committed there, excepting such as are
capital, all crimes committed there not cognizable by the Court of Gen-
eral Sessions or the Court of Common Pleas, according to the former
jurisdiction of these courts, have l)een tried before the Supreme Judicial
Court in Suffolk.
St. 1795, c. 81, provided that the Supreme Judicial Court
holden at Boston, within and for the County of Suffolk,
should have original jurisdiction and cognizance of all
crimes committed in the County of Nantucket which were
not cognizable by the Court of General Sessions there, and
provided, further, that in capital cases only, if the defen-
dant so requested, the court should issue a venire for at least
six jurors from the County of Nantucket.
R. S. (1836), c. 133, § 7, now G. L., c. 277, § 57, provided
that any offence committed within one hundred rods of the
dividing line between two counties might be prosecuted and
punished in either county. In Crocker v. Justices of the
Superior Court, 208 Mass, 162, the petitioners had been
indicted for a felony, and the question was whether the
Superior Court had jurisdiction to order a change of the
place of trial from one county to another, if and when satis-
fied that a fair and impartial trial could not be had within
the county where the venue was laid in the indictment.
The court held that that court had such jurisdiction, and
said, at pages 174-175: —
In the light of the history of our common law and the jurisdiction of
our courts, we are of opinion that these statutes, so far as they empower
a transfer in order to secure an impartial trial, are but declaratory of the
common law arid confer no new power. . . . These statutes and this
122 OPINIONS OF THE ATTORNEY-GENERAL.
principle for securing an impartial trial in exceptional cases are in no way
at variance with the general proposition of art. 13 of the Declaration of
Rights as to the importance of the verification of fa6ts in the vicinity
where they happen.
The weight of opinion in those of the older Sta'tes, whose judicial his-
tory is most nearly like our own, supports the view that it is an inherent
power of common law courts to order a change for the purpose of securing
an impartial trial.
The court further said at page 179: —
A court of general jurisdiction ought not to be left powerless under the
law to do within reason all that the conditions of society and human
nature permit to provide an unprejudiced panel for a jury trial. With-
out such a power it might become impossible to do justice either to the
general public or to the individual defendant.
The proposed bill provides, in substance, that when the
Attorney-General or the district attorney petitions to the
court before proceeding with the trial of a criminal case for
leave to proceed, stating that he is in doubt from the state
of the evidence then in his possession as to whether or not
the crime was committed within the county or territorial
jurisdiction of the court, and the court, after hearing the
petition, orders the trial to proceed, the defendant shall not
be discharged for want of jurisdiction if the evidence as de-
veloped at the trial discloses that the crime was committed
without the county or territorial jurisdiction of the court.
Such an act is one that public good and necessity require,
and, without it, it might be difficult to do justice to the
general public.
The proposed bill is not, in my opinion, inconsistent with
either the spirit or the letter of article XIII of the Declara-
tion of Rights. I am therefore of the opinion that the pro-
posed bill, if enacted, would be constitutional.
jay k. benton, attorney-general. 123
Constitutional Law — Intoxicating Liquors —
Federal Permit.
An act providing that no person shall manufacture, transport, import or export
intoxicating liquors or certain non-intoxicating beverages unless he shall have
obtained the Federal permit required therefor by the laws of the United
States, is constitutional.
Governor.
You request me to consider House Bill No. 1433, entitled q°^^^j,
"An Act relative to intoxicating liquors and certain non- ^ay^s
intoxicating beverages," which reads as follows: —
No person shall manufacture, transport by air craft, water craft or
vehicle, import or export spirituous or intoxicating liquor as defined by
section three, or certain non-intoxicating beverages as defined by section
one, unless in each instance he shall have obtained the permit or other
authority required therefor by the laws of the United States and the
regulations made thereunder.
Certain portions of the proposed bill were recommended
by the Attorney General in his last annual report, on the
unanimous request of the district attorneys and the district
attorneys-elect of the various districts of the Common-
wealth.
By Mass. Const., c. I, § 1, art. IV, the Legislature is given
full power and authority to make, ordain and establish all
manner of wholesome and reasonable orders, laws, statutes
and ordinances, directions and instructions, not repugnant
or contrary to the Constitution, as they shall judge to be
for the good and welfare of the Commonwealth and for the
government and ordering thereof. Legislative power is
thereby vested exclusively in the General Court, except so
far as modified by the initiative and referendum amend-
ment. It is a power which cannot be surrendered or dele-
gated, or performed by any other agency. Graham v.
Roberts, 200 Mass. 152; Boston v. Chelsea, 212 Mass. 127;
Dinan v. Swig, 223 Mass. 516; Opinion of the Justices,
239 Mass. 606.
The question of the constitutionality of various provi-
sions of law relative to intoxicating liquors (House Bill No.
124
OPINIONS OF THE ATTORNEY-GENERAL.
1612 of 1921) was fully considered by the justices of the
Supreme Judicial Court. Opinion of the Justices, 239 Mass.
606. At page 610, the justices said: —
It is attempted b}'- these sections and possibly by other sections to
make the substantive law of the Commonwealth in these particulars
change automatically so as to conform to new enactments from time to
time made by Congress and new regulations issued pursuant to their
authority by subsidiary executive or administrative officers of the United
States. It purports to create offences and impose punishments therefor,
not by definition and declaration, but by reference to what may hereafter
be done in these particulars by the Congress of the United States and
those by it authorized to establish regulations.
We are of opinion that legislation of that nature would be contrary to
the Constitution of this Commonwealth.
At pages 611-612, the justices said: —
By several sections of the proposed statute compliance with certain
provisions of an act of Congress or valid regulations made pursuant to
its authority is made a condition to the performance of conduct permitted
by the proposed bill. Such conditions, even though the act of Congress
may be changed, involve no modification of the law of Massachusetts.
That stands as enacted. In this class fall §§ 11, 17, 19 and 23 of the
proposed bill, which do not contravene any constitutional guaranty.
Section 11 of the bill of 1921 provided, in part, that no
license issued by the Board of Registration in Pharmacy
should be valid unless the licensee was lawfully authorized
by the laws of the United States, and the regulations made
thereunder, to sell intoxicating liquors for medicinal pur-
poses. Section 17 of that bill provided, in part, that no
manufacturer or wholesale druggist should sell or otherwise
dispose of any liquor except to persons having permits re-
quired by the laws of the United States, and the regulations
made thereunder, to purchase in such quantities. Section
19 of that bill provided, in part, that a carrier should deliver
liquor only to persons who present a verified copy of a per-
mit to purchase, in the form required by the laws of the
United States, and the regulations made thereunder. Sec-
JAY R. BENTON, ATTORNEY-GENERAL. 125
tion 23 of that bill provided, in part, that it was unlawful
for any person to advertise liquor or the price at which it
might be obtained, but that manufacturers and wholesale
druggists holding permits to sell liquor, required by the
laws of the United States, and the regulations made there-
under, were not prohibited from furnishing price lists, with
a description of the liquor for sale, to persons permitted to
purchase liquor.
The four foregoing sections, in the opinion of the justices,
did not contravene any constitutional guaranty. VI Op.
Atty. Gen. 179.
The proposed bill provides that no person shall manu-
facture, transport, import or export intoxicating liquors or
certain non-intoxicating beverages unless in each instance
he had obtained the permits or other authority required
therefor by the laws of the United States, and the regula-
tions made thereunder.
Applying the test of constitutionahty, as defined in
Opinion of the Justices, 239 Mass. 606, I am unable to dif-
ferentiate the provisions of the proposed bill from the pro-
visions of the four sections of the bill of 1921, which were
held to be constitutional.
There is no substantive difference between the bill now
before me and the provisions of St. 1922, c. 427, § 1, sub-
section 3 (an act to carry into effect, so far as the Common-
wealth of Massachusetts is concerned, the Eighteenth
Amendment to the Constitution of the United States).
That there were no constitutional objections to those pro-
visions was twice held by my predecessor.
In view of the foregoing, I am of the opinion that the
proposed bill, if enacted, would be constitutional.
126 opinions of the attorney-general.
Justice of the Peace — Notary Public — Tenure of
Office — Removal from the Commonwealth.
During the period for which a person is commissioned a justice of the peace or a
notary public he is authorized, while in this Commonwealth, to act as such
unless and until he has been removed by action of the Governor and Council,
as provided by the Constitution, although he cannot act as such when outside
the jurisdiction of the Commonwealth.
A removal from the jurisdiction does not ipso facto terminate the tenure of office of
a public official.
se" retlry. ^^^ rcquest my opinion on the following facts : —
1923
May 10.
Under date of July 3, 1918, a man residing in Somerville, Mass., was
commissioned as a justice of the peace and a notary public by the Governor
and Council. The commissions, under the Constitution, were to expire
July 3, 1925. About September, 1920, he left Massachusetts and be-
came a resident of Maine, where he continued to live for a year and a
half, during which period of time he exercised the voting privilege in
that state. About one year ago he returned to Massachusetts and re-
sumed residence in the city of Somerville.
Under the conditions referred to, can he now act as a justice of the
peace and a notary public under the commissions of July 3, 1918, or is it
your opinion that he must again be appointed by the Governor and Coun-
cil so to act?
Mass. Const., pt. 2d, c. Ill, art. I, as amended by Mass.
Const. Amend. LVIII, provides as follows: —
The tenure, that all commissioned officers shall by law have in their
offices, shall be expressed in their respective commissions. All judicial
officers, duly appointed, commissioned, and sworn, shall hold their offices
during good behavior, excepting such concerning whom there is different
provision made in this constitution: provided nevertheless, the governor,
with consent of the council, may remove them upon the address of both
houses of the legislature: and provided also that the governor, with the
consent of the council, may after due notice and hearing retire them be-
cause of advanced age or mental or physical disability. Such retirement
shall be subject to any provisions made by law as to pensions or allowances
payable to such officers upon their voluntary retirement.
Mass. Const., pt. 2d, c. Ill, art. Ill, provides for the
tenure of commissions of justices of the peace as follows: —
JAY R. BENTON, ATTORNEY-GENERAL. 427
In order that the people may not suffer from the long continuance
in place of any justice of the peace who shall fail of discharging the im-
portant duties of his office with ability or fidelity, all commissions of
justices of the peace shall expire and become void, in the term of seven
years from their respective dates; and, upon the expiration of any com-
mission, the same may, if necessary, be renewed, or another person
appointed, as shall most conduce to the well-being of the commonwealth.
In an opinion from a former Attorney-General to His
Excellency the Governor (VI Op. Atty. Gen. 371), it was
stated : —
Although the Constitution expressly provides that residence for a
certain fixed period of time within the Commonwealth is a prerequisite
to the election or appointment of many officers (for example, governor,
Mass. Const., pt. 2d, c. II, § I, art. II; lieutenant-governor, Mass. Const.,
pt. 2d, c. II, § II, art. I; councillors, Mass. Const. Amend. XVI; sena-
tors, Mass. Const. Amend. XXII; representatives, Mass. Const. Amend.
XXI; secretary, treasurer and receiver-general, auditor and attorney-
general, Mass. Const. Amend. XVII), nevertheless, nowhere in the Con-
• stitution or in the General Laws is there to be found any requirement as
to time of residence in Massachusetts before a person may become a
justice of the peace or a notary public.
There is likewise no provision in the Constitution or
statutes that removal from this Commonwealth shall ipso
facto terminate the commission of a justice of the peace or
a notary public. That a removal from the jurisdiction does
not ipso facto terminate the tenure of office of a public offi-
cial is evidenced by the fact that it has been deemed neces-
sary or advisable by the Legislature to enact a statute de-
claring in certain cases that such removal shall terminate
the office specified. For example, G. L., c. 41, § 109, pro-
vides, in part, that ''if a person removes from a town he
shall thereby vacate any town office held by him." I am
aware of no similar provision of law respecting justices of
the peace or notaries public.
By the Constitution of the Commonwealth the office of
justice of the peace is a judicial office. Opinion of the Jus-
tices, 107 Mass. 604. While the office of notary public is
128 OPINIONS OF THE ATTORNEY-GENERAL.
not a judicial office, nevertheless, the Constitution provides
(Mass. Const. Amend. IV) that "notaries public shall be
appointed by the governor in the same manner as judicial
officers are appointed and shall hold their offices during
seven years."
The Constitution, however, provides for the removal of
justices of the peace and notaries public. Mass. Const.
Amend. XXXVII, provides: —
The governor, with the consent of the council, may remove justices
of the peace and notaries public.
It accordingly follows that during the period for which a
person is commissioned a justice of the peace or a notary
public he is authorized, while in this Commonwealth, to
act as such unless and until he has been removed by action
of the Governor and Council, as provided by the Constitu-
tion, supra, although he cannot act as such when outside
the jurisdiction of the Commonwealth. See V Op. Atty.
Gen. 166.
jay r. benton, attorney-general. 129
Constitutional Law — Disposition of Land no longer
ADAPTED TO PUBLIC USES PuBLIC ChARITY — IM-
PAIRMENT OF Obligation of Contract — Cy Pres
— Sale of Obsolete Property — Payment of Mon-
eys received into State Treasury.
Laud acquired by the Commonwealth by eminent domain or through expenditure
of public funds, held strictly for public purposes and not subject to the terms
of any gift, devise, grant, bequest or other trust or condition, is under the
control of the General Court, and may be transferred to an agency of the
State government or devoted to some other public use by legislative mandate.
However, if land is subject to the terms of any gift, devise, grant, bequest or other
trust or condition, the Legislature is not at liberty to dispose of the land or
devote it to other purposes.
If it has become impracticable to administer a charitable trust according to its
terms, a court of equity will exercise its power to devise some method of ad-
ministering the charity cy pres to accomplish substantially the same result.
As an essential part of the duties of the Department of Public Welfare, it has the
right to dispose, by sale, of dead and dying timber on land under its control.
The moneys received from the sale of such timber must be paid into the State
treasury, in compliance with Mass. Coast. Amend. LXIII, § 1.
-IT- , • • . . , • r 1 To the Com-
You request my opinion upon certain questions oi law missionerof
1 Public WclffirG
having to do with a tract of land in the town of Walpole, ^^923
known as Robbins Farm, and under the control of your
department.
Your first question is based on the following set of facts.
Chapter 101 of the Resolves of 1911 authorized the State
Board of Charity, whose powers and duties your depart-
ment has since taken over, to receive and hold on behalf
of the Commonwealth the right, title and interest in the
said Robbins Farm, and to maintain the same, and to use
' it exclusively for and in connection with the care of minors.
You state that your department is unable now to make any
I satisfactory use of this property for the purpose for which
it was given to the Commonwealth, and the cost of the
caretaker is, in your opinion, an unwarranted expense.
You state that the heirs are willing to take the property
back or to have it sold and the proceeds applied, in pur-
suance of the trust, to any other charity. You inquire
whether or not your department has the power to dispose
of the property.
May 14.
130 OPINIONS OF THE ATTORNEY-GENERAL.
Land acquired by the Commonwealth, a city or a town
by eminent domain or through expenditure of public funds,
held strictly for public purposes and not subject to the terms
of any gift, devise, grant, bequest or other trust or condi-
tion, is under the control of the General Court. It may be
transferred to some other agency of government or devoted
to some other public use by legislative mandate. Up to
1921 the question never had arisen, for express judicial de-
termination in this Commonwealth, as to whether land once
taken in fee for a public use could be sold and devoted to
private uses when, through lapse of time or by reason of
changed conditions, and under legislative authority, it had
been decided that such land was no longer needed for public
uses. By the case of Wright v. Walcott, 238 Mass. 432, it
was decided that such a sale would be valid when authorized
by the Legislature. As shown above, this does not hold
where the land is subject to the terms of any gift, devise,
grant, bequest or other trust or condition. The Robbins
Farm, held by your department, is apparently subject to
the terms of a trust, and if the charitable gift can be admin-
istered according to the directions of the donor, in my
judgment, the Legislature is not at liberty to dispose of the
land upon considerations of policy or convenience. If it
has become impracticable to administer this charitable
trust according to its terms, it may well be that a court of
equity will exercise its power to apply the doctrine of cy
pres; that is, to execute the charitable trust as nearly ac-
cording to the intent of the donor as circumstances will
permit.
Your second question arises out of the following set of
facts. On this Robbins Farm there is standing timber which
Chief Forester Cook, of the Department of Conservation,
has reported to you is infested with gypsy moths, so that
most of it is dead. You ask whether or not you have the
power to cut this dead and dying timber and sell the same.
I find no special provision authorizing the sale of property
by your department, but there can be no question that,
JAY R. BENTON, ATTORNEY-GENERAL. 131
under your general powers, you have the right to dispose
of such property as you can no longer utilize. Such a right
is incidental to and is an essential part of the duties given
to you for the proper management and conduct of the prop-
erties under your control. These rights do not, however,
confer upon you the right to expend the moneys received
by you from the sale of such timber. Such moneys once
received must be turned over to the Treasurer and Receiver
General, in compliance with Mass. Const. Amend. LXIII,
§ 1, which provides that "all money received on account of
the commonwealth from any source whatsoever shall be
paid into the treasury thereof." In addition, if you dispose
of the aforesaid timber by sale, you should conform to such
rules as the Commission on Administration and Finance has
made affecting the "disposal of obsolete, excess and un-
suitable supplies, salvage and waste material and other
property," as provided by St. 1922, c. 545, § 12.
132 opinions of the attorney-general.
Constitutional Law — Taxation — Excise Tax — Tax
UPON THE Sale of Gasoline for Consumption in
THE Operation of Motor Vehicles upon the High-
ways OF THE Commonwealth.
House Bill No. 1520 imposes an excise tax upon the privilege of driving motor
vehicles upon the public highways of the Commonwealth, and not upon the
privilege of selling gasoline.
An excise tax upon the privilege of driving motor vehicles upon the highways of
the Commonwealth, which contains a provision that "no provisions of this
chapter shall apply ... to interstate commerce, except in so far as the same
may be permitted under the . . . constitution of the United States and the
acts of congress," is not in contravention of either the Federal or the State
Constitution.
In an excise tax upon the privilege of driving motor vehicles upon the highways of
the Commonwealth the amount of gasoline purchased for consumption in the
operation of motor vehicles affords a fair criterion of the extent to which the
highways are used, and the imposition of the tax upon the sale of gasoline for
that purpose is a proper and convenient method of administration.
Quaere, Whether an excise tax upon the privilege of selling gasoline generally would
not be unconstitutional.
A tax imposed upon the sale of gasoline for consumption in the operation of motor
vehicles is not an import duty, within the prohibition of U. S. Const.,
art. I, § 10.
Hous'p^of Rep- I have the honor to acknowledge the receipt of an order
""T923*'^*'* of the House of Representatives in the following form : —
May 14.
Ordered, That the Attorney General be requested to furnish to the
House of Representatives an opinion on the constitutionality of the bill
to provide funds toward the cost of construction and maintenance of
highways and bridges by means of an excise tax on gasoline and other
fuel used for propelling motor vehicles over the highways of the Com-
monwealth (House Bill No. 1520).
Your inquiry requires consideration of pertinent provi-
sions of both the Constitution of Massachusetts and of the
United States.
I. Has the Legislature the power, under the Constitution
of Massachusetts, to pass an excise tax of the nature of the
one under consideration?
If the tax be viewed as one imposed upon the privilege of
selling gasoline, the question is not free from doubt.
Mass. Const., pt. 2d, c. I, § I, art. IV, provides: —
JAY R, BENTON, ATTORNEY-GENERAL. 133
And further, full power and authority are hereby given and granted
to the said general court, ... to impose and levy proportional and rea-
sonable assessments, rates, and taxes upon all the inhabitants of, and
persons resident, and estates lying, within the said commonwealth; and
also to impose and levy reasonable duties and excises upon any produce,
goods, wares, merchandise, and commodities, whatsoever, brought into,
produced, manufactured, or being within the same; . . .
Prior to 1883 the court seemed inclined to construe very
broadly the grant of power to levy excise taxes. In Port-
land Bank v. Apthorp, 12 Mass. 252, 256, Chief Justice
Parker expounded the significance of this clause of the
Constitution in a paragraph which has since become classic.
He said : —
The term excise is of very general signification, meaning tribute, cus-
tom, tax, tollage, or assessment. It is limited, in our constitution, as to
its operation, to produce, goods, wares, merchandise and commodities.
This last word will perhaps embrace everything, which may be a subject
of taxation, and has been applied by our legislature, from the earliest
practice under the constitution, to the privilege of using particular
branches of business or employraent, as the business of an auctioneer,
of an attorney, of a tavern keeper, of a retailer of spirituous liquors, &c.
It must have been under this general term commodity, which signifies
convenience, privilege, profit and gains, as well as goods and wares,
which are only its vulgar signification, that the legislature assumed the
right which has been uniformly and without complaint exercised for
thirty years, of exacting a sum of money from attorneys, and barristers
at law, vendue masters, tavern keepers and retailers. For every man has
a natural right to exercise either of these employments free of tribute,
as much as a husbandman or mechanic has to use his particular calling.
The money required of them is not a proportional tax; nor is it an excise
or duty upon produce, goods, wares or merchandise. It is a commodity,
convenience or privilege, which the legislature has, by contemporaneous
construction of the constitution, assumed a right to sell at a reasonable
price: and by parity of reason it may impose the same conditions upon
every other employment or handicraft.
This statement appears to have been accepted as the true
exposition of the meaning of the clause for many years.
Commonwealth v. People's Five Cents Savings Bank, 5 Allen,
428, 431.
134 OPINIONS OF THE ATTORNEY-GENERAL.
Under these decisions an excise tax could be imposed upon
the exercise of a so-called "natural right" as readily as upon
one created or subject to regulation by law.
In 1883, however, the Supreme Judicial Court adopted
a narrower view of the powers of the Legislature, and held
that an act extending the excise tax previously laid on corpo-
rations so as to include unincorporated companies with a
capital stock divided into transferable shares was un-
constitutional. Gleason v. McKay, 134 Mass. 419.
The view put forward in Gleason v. McKay, supra, was
severely criticized in the case of Minot v. Winthrop, 162
Mass. 113, but appears to have been at least partially re-
adopted in O'Keefe v. Somerville, 190 Mass. 110.
In Opinion of the Justices, 196 Mass. 603, rendered in 1908,
the question of the constitutionality of an act imposing a
tax on sales of shares or certificates of stock in any domestic
or foreign corporation or association was under consider-
ation. A majority of the court held that such an act would
be constitutional. The justices were divided in their
opinion as to the true significance and effect of the earlier
cases. Three of the justices were of the opinion that "the
power of the General Court in imposing and levying an
excise duty is not less extensive than that of Congress.
Three dissented from this opinion, and held that the powers
of the Massachusetts Legislature in this respect were
narrower than those of Congress, and that an excise tax on
the exercise of a purely natural right was unconstitutional.
The present chief justice expressed the opinion that "al-
though, speaking generally, the right to own property is
absolute, the right to contract with reference to all sales
of property is not equally absolute," and that a sale of an
interest in an unincorporated association, when included in
a legal, general classification, might be the subject of an
excise tax.
That Congress has the power to impose an excise tax
upon the sale of a commodity seems clear. McCray v.
United States, 195 U. S. 27.
JAY R. BENTON, ATTORNEY-GENERAL. 135
It is unnecessary, however, to hazard an opinion upon
the point on which the court divided in Opinion of the Jus-
tices, 196 Mass. 603, in order to answer the inquiry pro-
pounded to me. Another Hne of reasoning suggests itself
upon which, in my opinion, the validity of the proposed tax
may be rested.
Many features of the act suggest that the privilege upon
which the excise is imposed is in reality the privilege of
driving motor vehicles upon the public highways of the
Commonwealth, rather than that of selling gasoline; and
that a tax is imposed upon the sale of gasoline merely as
a convenient method of administration, and because the
amount of gasoline purchased affords a fair and workable,
if rough, criterion of the extent to which the highways are
used.
The title of the act is significant, — "An Act to provide
funds toward the cost of construction and maintenance of
highways and bridges by means of an excise tax on gasoline
and other fuel used for propelling motor vehicles over the
highways of the Commonwealth." The "fuel" upon the
sale of which the tax is nominally imposed is defined in
section 1 by reference to its suitability for use in propelling
motor vehicles. In the same section "purchaser" and "sale"
are so defined as to include within the act the transfer of fuel
by a distributor into his own motor vehicle. Section 7
exempts from taxation sales of fuel subsequently consumed
in any manner other than "in the operation of motor vehicles
operated or intended to be operated over the highways of
the commonwealth." Section 9 provides that the tax in
every instance shall be borne by the purchaser; and that
the exemption established by section 7 shall be effected by
a rebate to the ultimate consumer, that is, the motorist,
himself, not to the original distributor or to any middleman.
Finally, by section 13 the entire net yield of the tax is to be
credited to a "gasoline-highway fund," and expended for
the construction, improvement and maintenance of public
ways and highways.
136 OPINIONS OF THE ATTORNEY-GENERAL.
The power of the Commonwealth in the regulation of its
own public ways is beyond question. Commonwealth v.
Slocum, 230 Mass. 180; Burgess v. Mayor and Aldermen
of Brockton, 235 Mass. 95. Viewed, therefore, as an excise
tax, or toll, for the use of the public ways of the Common-
wealth, the proposed act is, in my opinion, within the power
conferred upon the Legislature by the C/onstitution of
Massachusetts.
The constitutionality of the State registration law, under
which the tax is graded by reference to horse power, rests
upon a similar principle. Hendrick v. Maryland, 235 U. S.
610; Kane v. Titus, 81 N. J. L. 594, 598; Kane v. New
Jersey, 242 U. S. 160, 168.
The Constitution of the State of New Hampshire has no
provision permitting the imposition of an excise tax; and
it is beyond the constitutional power of the Legislature to
impose any taxes other than "proportional and reasonable
assessments, rates and taxes." State v. Express Co., 60
N. H. 219; Curry v. Spencer, 61 N. H. 624. Yet the
justices of the Supreme Court of New Hampshire have
recently rendered an opinion based upon reasoning similar
to that relied upon above, to the effect that "a gasoline tax
collected from wholesalers on all sales of gasoline, with a
provision for a rebate to consumers who use the gasoline
for purposes other than the operation of automobiles,"
"amounts to the same thing, in substance, as a toll for the
use of the highways, and may lawfully be imposed by the
Legislature." Opinion of the Justices, 81 N. H. 552.
The license required by section 2 appears to me an ap-
propriate method of enforcing the proposed tax; one well
adapted, at least, if not essential, to its efficient admin-
istration, and unobjectionable, provided the tax itself, to
which it is merely incidental, is one which the Legislature
is competent to impose. Cf. Boston v. Schaffer, 9 Pick.
415; Dewey v. Richardson, 206 Mass. 430.
n. The proposed act gives to persons who buy fuel, as
defined therein, on which an excise has been paid, and who
JAY R. BENTON, ATTORNEY-GENERAL. 137
consume the same "in any manner except in the operation
of motor vehicles operated or intended to be operated
over the highways of the commonwealth," a right to be
reimbursed the amount of the excise, and "motor vehicle"
is so defined as to except "boats, tractors used exclusively
for agricultural purposes, and such vehicles as run only on
rails or tracks."
The question is presented whether these exemptions
constitute an arbitrary discrimination and class legislation,
in contravention of either the Federal or the State Consti-
tution.
In Connolly v. Union Sewer Pipe Co., 184 U. S. 540, a
State anti-trust act excepting from its operation "agri-
cultural products or live stock while in the hands of the
producer or raiser," was held unconstitutional because it
created an arbitrary discrimination and denied to others the
equal protection of the laws. See V Op. Atty. Gen. 80.
But this case has frequently been distinguished in more
recent decisions of the Supreme Court of the United States,
and the court has gone far in upholding classifications as
reasonable, against attack on the ground of inequality or
discrimination. International Harvester Co. v. Missouri,
234 U. S. 199; Commonwealth v. Titcomh, 229 Mass. 14.
If, as I have indicated, the proposed tax is to be regarded
as a toll for the use of the highways of the Commonwealth,
then, clearly, the exemption from tax of sales of fuel for
other purposes is fully justified.
III. The remaining question is whether in any other
respect the proposed act conflicts with any provision of
the Federal Constitution.
U. S. Const., art. I, § 10, provides: —
No state shaU, mthout the consent of the congress, lay any imposts
or duties on imports or exports, except what may be absolutely necessary
for executing its inspection laws.
U. S. Const., art. I, § 8, provides: —
138 OPINIONS OF THE ATTORNEY-GENERAL.
The congress shall have power ... to regulate commerce with for-
eign nations, and among the several states, and with the Indian tribes;
In my opinion, the first of these provisions, that for-
bidding any State to impose an import tax, is not violated
by the proposed act. No tax is imposed upon the impor-
tation of gasoline into the State. It may be imported freely,
kept for any length of time, and used by the importer for
any purpose other than the propulsion of a motor vehicle,
without subjecting the importer to any tax liability. In
short, the tax, in my opinion, is not in any true sense an
import duty.
So far as the question of possible encroachments upon
Congress' power over interstate commerce, under section
8 of article I, quoted above, is concerned, the act is carefully
drawn to avoid any such difficulty.
The sales forbidden by section 2 unless a license has first
been procured by the distributor, are specifically restricted
to exclude sales, the imposition of a tax upon which would
be unconstitutional because a burden upon interstate
commerce.
As previously stated, any person who consumes fuel on
which an excise has been paid, "in any manner except in
the operation of motor vehicles operated or intended to be
operated over the highways of the commonwealth," by section
7 is entitled to be reimbursed the amount of the excise.
Section 8 provides : —
No provisions of this chapter shall apply or be construed to apply to
international or interstate commerce, except in so far as the same may
be permitted under the provisions of the constitution of the United States
and the acts of congress.
And section 12 establishes appropriate machinery for
th6 enforcement of this immunity. That section provides : —
The supreme judicial court shall have jurisdiction in equity to restrain
the collection, upon any sale exempted by the constitution and laws of the
JAY R. BENTON, ATTORNEY-GENERAL. 139
United States, of the excise imposed by this chapter. Said bill shall be
brought against the commissioner, whether the question of the collection
of the excise is in the hands of the attorney general or pending before
the board of appeal or is still in the hands of the commissioner.
In view of these safeguards against encroachment upon
the exclusive power which Congress possesses over inter-
state conunerce, I am of the opinion that the proposed tax
contravenes no provision of the Federal Constitution.
It follows that, in my opinion, House Bill No. 1520 is
within the power of the Legislature to enact and, if so en-
acted into law, would be constitutional.
Constitutional Law — Arbitrary Discrimination —
Class Legislation — Marketing Contracts be-
tween Co-operative Agricultural Associations
and their members.
A statute providing for the incorporation of co-operative agricultural associations
without capital stock, authorizing the making of marketing contracts between
such corporations and their members for the sale of their products for a cer-
tain period of time exclusively to or through the corporation, and providing
that such contracts should not be construed as in violation of the anti-trust
laws contained in G. L., c. 93, §§ 1-7, unless they resulted in undue enhance-
ment of prices, would not be unconstitutional as making an arbitrary discrimi-
nation in favor of a particular class.
You have transmitted to me for examination and report q^J!^^^
House Bill No. 1398, entitled "An Act to provide for the niy^fs.
incorporation of co-operative agricultural associations with-
out capital stock."
The purpose of the bill, as its title and its provisions
indicate, is to authorize the incorporation without capital
stock of associations engaged in any kind of farming busi-
ness, to provide for the management of such corporations
by the members thereof and to limit the membership to
persons engaged in the production of products handled by
the corporation, to permit the making of marketing contracts
between such corporations and their respective members
"by which the members shall agree to sell, for any period
ernor.
140 OPINIONS OF THE ATTORNEY-GENERAL.
of time not exceeding ten years, all or any specified part of
their products or of certain specified products exclusively
to or through the corporation or any agency designated
by it," and to make such marketing contracts cfTective by
authorizing the fixing of liquidated damages for breach
thereof and by providing that the corporation may be en-
titled to an injunction against a member for breach or
threatened breach of the contract with reference to its pro-
visions for sale or delivery of products. There is a
provision that "such contract shall not be construed as a
violation of any provision of sections one to seven, inclusive,
of chapter ninety-three, unless it results in an undue en-
hancement of the price of the product to which the contract
applies," and that such corporation shall not be liable to
prosection for any action, reasonable and proper, in the exer-
cise of the rights conferred upon it by the act. There are
further provisions imposing taxes on such corporations; and
other provisions the object of which is to remove incon-
sistencies in other parts of the General Laws.
Some of the provisions of the proposed act in the form
submitted by Your Excellency seem to me to be, if not
actually unconstitutional, at least objectionable because in
several respects they appear to run counter to the policy
of our laws. Proposed amendments to the bill have been
drafted which, in my opinion, if adopted, would cure the
defects in the present bill which I have referred to.
The proposed amendments do not, however, attempt to
deal with the possible objection to the bill because of the
provisions authorizing the making of marketing contracts
between the corporations and their members and excepting
such contracts from the operation of the anti-trust laws
contained in G. Ij., c. 93, §§ 1-7. The question, therefore,
must be considered whether this authorization and exception
constitute an arbitrary discrimination and class legisla-
tion, making the provisions unconstitutional.
In Connolly v. Union Sewer Pipe Co., 184 U. S. 540, a
State anti-trust act excepting from its operation ' 'agricultural
JAY R. BENTON, ATTORNEY-GENERAL. 141
products or live stock while in the hands of the producer or
raiser" was held unconstitutional because it created an
arbitrary discrimination and denied to others the equal
protection of the laws. On the authority of this case, one
of my predecessors held, in an opinion to the Governor under
date of May 24, 1917 (V Op. Atty. Gen. 80), that an act
was unconstitutional, the object of which was ''to prohibit
combinations and monopolies to control prices of com-
modities in common use," which contained a provision ex-
cepting from its operation "agreements between farmers,
or other persons engaged in agricultural or horticultural
pursuits, relative to the sale of the products of their own
farms." But the Connolly case has frequently been
distinguished in more recent decisions of the Supreme Court
of the United States, and the court has gone far in upholding
classifications as reasonable, against attack on the ground
of inequality or discrimination. International Harvester
Co. V. Missouri, 234 U. S. 199; C. A. Weed & Co. v. Lock-
wood, 266 Fed. 785, 791, 792; Commonwealth v. Titco7nb,
229 Mass. 14, and cases cited.
Indeed, Congress itself has excepted agricultural and other
associations from the operation of anti-trust laws. Section
6 of the Clayton Act (Act of October 15, 1914, c. 323, 38
Stat. 731) provides that "nothing contained in the anti-
trust laws shall be construed to forbid the existence and
operation of labor, agricultural, or horticultural organ-
izations, instituted for the purposes of mutual help, and not
having capital stock or conducted for profit, or to forbid
or restrain individual members of such organizations from
lawfully carrying out the legitimate objects thereof; nor
shall such organizations, or the members thereof, be held
or construed to be illegal combinations or conspiracies in
restraint of trade, under the anti-trust laws"; and by Act
of February 18, 1922, c. 57, 42 Stat. 388, entitled "An Act
to authorize association of producers of agricultural pro-
ducts," Congress enacted that persons engaged in the
production of agricultural products, including dairymen,
142 OPINIONS OF THE ATTORNEY-GENERAL.
may act together in associations, corporate or otherwise,
in collectively marketing their products in interstate and
foreign commerce and may make the necessary contracts
to effect such purposes, with certain provisos, and subject
to restraint by the Secretary of Agriculture and the courts,
in case it appears that there is a monopoly or restraint of
interstate commerce to such an extent that the price of
an agricultural product is unduly enhanced by reason thereof.
The constitutionality of those provisions, as far as I am
aware, has not been questioned.
In the proposed act the thing which is the subject of the
excepting provisions is the marketing contract. This
contract is merely an agreement between the corporation
and a member by which the member agrees to sell for a
certain period of time all of a specified part of his products
exclusively to or through the corporation. At common
law the legality of an agreement by which one person agrees
to sell a product to another person exclusively seems to
depend upon the reasonableness of the agreement in the
light of the circumstances under which it is made and its
purpose and effect. Unless it creates or tends to create a
monopoly or results in an undue restraint of trade, such
an agreement is valid. Central Shade Roller Co. v. Cushman,
143 Mass. 353, 363; Meyer v. Estes, 164 Mass. 457, 464, 465;
N. Y. Bank Note Co. v. Kidder Press Mfg. Co., 192 Mass.
391, 403.
In the absence of statute authorizing the making of such
a contract its legality may also be affected by G. L., c.
93, §§1 and 2. These sections are as follows: —
Section 1. No person, firm, association or corporation doing business
in the commonwealth, shall make it a condition of the sale of goods,
wares or merchandise that the purchaser shall not sell or deal in the goods,
wares or merchandise of any other person, firm, association or corpora-
tion; but this section shall not prohibit the appointment of agents or
sole agents for the sale of, nor the making of contracts for the exclusive
sale of, goods, wares or merchandise. . . .
Section 2. Every contract, agreement, arrangement, combination or
JAY R. BENTON, ATTORNEY-GENERAL. 143
practice in violation of the common law whereby a monopoly in the
manufacture, production, transportation or sale in the commonwealth
of any article or commodity in common use is or may be created, estab-
lished or maintained, or whereby competition in the commonwealth in
the supply or price of any such article or commodity is or may be re-
strained or prevented, or whereby for the purpose of creating, establishing
or maintaining a monopoly within the commonwealth of the manufacture,
production, transportation or sale of any such article or commodity, the
free pursuit in the commonwealth of any lawful business, trade or occu-
pation is or may be restrained or prevented ; or wherebj'^ the price of any
article or commodity in common use is or may be unduly enhanced within
the commonwealth, is hereby declared to be against public policy, illegal
and void.
Section 1, however, would not be applicable because of the
proviso that the making of contracts for the exclusive sale
of goods, wares or merchandise is not prohibited. Common-
wealth V. Strauss, 191 Mass. 545. Section 2 would be
applicable only in so far as the contract might create or
maintain a monopoly in dealings in the Commonwealth in
the product, or might restrain competition in the Common-
wealth in the supply or price of the product, or might restrain
trade in the Commonwealth for the purpose of creating or
maintaining such monopoly, or might unduly enhance
within the Commonwealth the price of the product. Cf.
Commonwealth v. North Shore Ice Delivery Co., 220 Mass. 55.
The proposed act limits the exception from the operation
of section 2 to cases where the marketing contract does not
result in an undue enhancement of the price of the product
to which the contract applies, and limits the corporation to
exemption from prosecution only in so far as its action in the
exercise of rights conferred by the act is reasonable and
proper. Whether it is intended by the bill to permit the
corporations which it authorizes to create and maintain
monopolies in farming products, and incidentally to restrain
competition in the supply and price of such products in the
Commonwealth, does not clearly appear; but such monop-
olies or restraints of competition, so long as they do not
144 OPINIONS OF THE ATTORNEY-GENERAL.
result in undue enhancement of prices, cannot seriously
harm the pubUc.
The question is not whether the marketing contracts
authorized may not conceivably be such as to come under
the ban of the common law or the anti-trust statute, but
whether the provisions authorizing them are so arbitrary
in their discrimination as to be constitutionally invalid.
One may readily infer that the object of the bill in permitting
organizations of farmers through which their products may
be exclusively marketed is to enable the farmer to dispose
of his products in a way which will be beneficial not only to
the farmer, but, by encouraging him to greater production,
to the community at large. Similar enactments, which
apparently have not been challenged, have been passed by
Congress, and I am informed in other States. I therefore
advise you that the provision in question would not be un-
constitutional as making an arbitrary discrimination in
favor of a particular class.
The provisions authorizing the making of marketing
contracts do not expressly limit them to transactions merely
in intrastate commerce. So far as appears, members of
the corporations authorized to be formed may reside and
do business in other States, and the marketing contracts
for which the bill provides may affect interstate trade. Of
course, the proposed act cannot make valid contracts in
restraint of interstate trade and monopolies of such trade
which are illegal by Federal law; nor would the act be
construed as attempting so to do. But, while I am not
called upon to decide that question, it seems that the Federal
statutes to which I have referred expressly permit the
organization of corporations and the making of marketing
contracts such as are authorized by the bill.
jay r. benton, attorney-general. 145
Labor — Hours of Employment — Women and Children
— Applicability of G. L., c. 149, § 56, to Laundries
OF Private Boarding Houses and Hospitals —
Eight-hour Day — Engineers — Laundries at
State Hospitals.
G. L., c. 149, § 56, limiting the hours of Labor of women and children applies to
laundries of private boarding houses and hospitals, and the hours of employ-
ment of women and children, regularly and exclusively employed therein, are
limited as provided for in said § 56.
The service of engineers employed in State hospitals, whose duties deal with fur-
nishing power to laundries, is restricted to eight hours in any one day, and to
forty-eight hours in any one week, except in cases of extraordinary emergency.
You request my opinion on the following questions : — ^s8ion?r°of '
1 . Are laundries maintained in private boarding houses and in hospitals
included within the requirements authorized by G. L., c. 149, § 56, or
do such requirements apply only to laundries engaged in doing work for
the general public?
2. Are engineers employed in State hospitals, whose duties deal with
furnishing power to laundries, restricted to eight hours in one day or
forty-eight hours in a week, except in cases of extraordinary emergency?
G. L., c. 149, § 56, as amended by St. 1921, c. 280, so far
as it pertains to your first inquiry, provides as follows : —
No child and no woman shall be employed in laboring in any factory
or workshop, or in any manufacturing, mercantile, mechanical establish-
ment, telegraph office or telephone exchange, or by any express or trans-
portation company, or in any laundry, hotel, manicuring, or hair dressing
estabUshment, motion picture theatre, or as an elevator operator, or as
a switchboard operator in a private exchange, more than nine hours in
any one day, . . .
Statutes limiting the hours of employment of children
were first enacted in 1842. This statute (St. 1842, c. 60)
was limited to children under the age of twelve employed
in laboring in any manufacturing establishment. In 1867,
by St. 1867, c. 285, mechanical establishments were added,
and in 1874 (St. 1874, c. 221) women were first included.
As the avenues of employment for women and children
Labor and
Industrips.
192.3
May 1.5.
146 OPINIONS OF THE ATTORNEY-GENERAL.
expanded, the Legislature extended the scope of inhibitions,
in 1913, so as to include any factory or workshop, any
mercantile establishment, telegraph office or telephone ex-
change, and any express or transportation company. St.
1913, c. 758. Finally, in 1921, the statute was amended
by adding the words: '^any laundry, hotel, manicuring or
hair dressing establishment, motion picture theatre, or . . .
elevator operator, or . . . switchboard operator in a private
exchange." St. 1921, c. 280.
Prior to the passage of the 1921 amendment to G. L., c.
149, § 56, the Legislature recognized the need for regulation
and inspection of conditions of employment in laundries
by including them within its definition of the phrase "build-
ings used for industrial purposes." St. 1912, c. 726, § 5.
G. L., c. 149, § 17, provides as follows: —
For the enforcement of the provisions of this chapter, the commissioner,
the director of the division of industrial safety and inspectors may enter
all buildings and parts thereof used for industrial purposes and examine
the methods of protection from accident, the means of escape from fire,
the sanitary provisions, the lighting and means of ventilation, and make
investigations as to the employment of women and minors and as to com-
pliance with all provisions of this chapter.
G. L., c. 149, § 1, defines "buildings used for industrial
purposes" as including "factories, workshops, bakeries,
mechanical establishments, laundries, foundries, tenement
house workrooms, all other buildings or parts thereof where
manufacturing is carried on, and mercantile establishments
as defined in this section."
Your first inquiry raises the question as to whether the
words "in any laundry," as used in St. 1921, c. 180, and the
word "laundries," as used in the definition of the phrase
"buildings used for industrial purposes" (G. L., c. 149, § 1),
are limited to establishments primarily and exclusively
conducted as laundries by way of trade, that is, as an in-
dependent industry or business, or whether they can be
said to include such establishments when maintained and
I
JAY R. BENTON, ATTORNEY-GENERAL. 147
operated as subsidiary to and as an adjunct of some other
business or commercial pursuit.
In Duggan v. Bay State Street Ry. Co., 230 Mass. 370, 374,
the court said : —
It is a principle of general scope that a statute must be interpreted
according to the intent of the makers, to be ascertained from its several
parts and all its words construed by the ordinary and approved usage of
the language, unless they have acquired a peculiar meaning in the law,
considered in connection with the cause of its enactment, the subject-
matter to which it appHes, the pre-existing state of the common and
statutory law, the mischief or imperfection to be remedied, and the piain
object to be accomplished, to the end that it be given an effect in harmony
with common sense and sound reason. . . .
The manifest purpose and intent of the Legislature in
enacting these particular statutes were the limitation of
the hours of employment of women and children, so as to
protect them, because of their age and sex, from physical
and moral dangers of certain occupations and certain places
of employment, as enumerated therein; and to regulate and
inspect certain places in which certain employment was
carried on, because of the conditions under which the em-
ployment was performed, in order to protect the employees
engaged therein from danger to health, life and limb.
Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383; Com-
monwealth V. Riley, 210 Mass. 387.
A "laundry" is defined by the Standard Dictionary as —
"An establishment or a room for washing and ironing
clothes." Laundry work, i.e., washing and ironing, is the
same whether performed for the general public or for a
limited or particular group. The work may be just as
arduous and confining, and the evils from long and continued
hours of employment just as great, when performed in a
laundry which is maintained and operated as subsidiary,
or incidental, to some other principal commercial or in-
dustrial enterprise, as in one whose sole and principal
business is that of laundering. The same kind of apparatus
148 OPINIONS OF THE ATTORNEY-GENERAL.
and machinery may be, and generally is, in use in one as
in the other. The same evil conditions may abound, and
the same degree of effort must be employed.
As a matter of fact, there are any number of private
boarding houses or hospitals where, because of the number
of persons residing or confined therein, the daily or weekly
wash is larger, and the number of persons specially employed
in the laundry attached to the private boarding house or
hospital is much greater, than in many so-called public
laundries, i.e., laundries which do washing and ironing for
the general public.
There can be no question but that the Legislature, in
including laundries within the list of inhibitions, had in
mind not the particular business carried on by them, but
rather the nature and kind of employment performed therein
and the conditions under which the employment was per-
formed. As these are primarily the same in a laundry
attached to a private boarding house or hospital, where
the washing and ironing are done for the residents or in-
mates thereof, as in a laundry engaged in doing work for
the general public, I am of the opinion that laundries at-
tached to private boarding houses or hospitals, in which
the employees are regularly and exclusively employed in
the performance of work therein, are included within the
requirements authorized by G. L., c. 149, § 56, as amended,
and that the hours of employment of women and children,
regularly and exclusively employed therein, would be
limited as provided for in said section 56.
As to your second inquiry, G. L., c. 149, § 30, provides,
in so far as it applies to your particular inquiry, as follows : —
The service of all laborers, workmen and mechanics now or hereafter
employed by the commonwealth ... is hereby restricted to eight hours
in any one day and to forty-eight hours in any one week. No officer of
the commonwealth . . . shall require or permit any such laborer, work-
man or mechanic to work more than eight hours in any one day, or more
than forty-eight hours in any one week, except in cases of extraordinary
emergency.
JAY R. BENTON, ATTORNEY-GENERAL. 149
Section 36 of said chapter 149 provides : —
Sections thirty, thirty-one and thirtj^-four shall not apply to the prepa-
ration, printing, shipment and delivery of ballots to be used at a caucus,
primary, state, city or town election, nor during the sessions of the general
court to persons employed in legislative printing or binding; nor shall
they apply to persons employed in any state, county or municipal insti-
tution, on a farm, or in the care of the grounds, in the stable, in the do-
mestic or kitchen and dining room service or in store rooms or offices. . . .
The term "domestic" has a widely varying meaning. Its
significance must be determined with reference to the subject-
matter and the relation in which it appears. As used in
said section 36, I am of the opinion that it was intended
to apply only to that particular group or class of employees
who perform such work or employment as is usually per-
formed by domestics or house servants, men or women.
Even if it were to be said that persons employed in the
laundry of a State institution could be considered domestics,
and therefore within the meaning of the term "domestic
service," as used in said section 36, I am of the opinion
that the term would still be limited to such employees as
perform the principal and particular work carried on in a
laundry, namely, washing and ironing, and that it would
not include employees like engineers, whose duties deal
merely with furnishing power to laundries, — work and
employment which is clearly incidental to the operation
of the laundry.
I am therefore of the opinion that engineers employed
in State hospitals, whose duties deal with furnishing power
to laundries, are restricted to eight hours in one day, or
forty-eight hours in one week, except in cases of extraor-
dinary emergency.
150 opinions of the attoeney-general.
Marriages — Authority to Solemnize — Officers of
The Salvation Army — "Ministers of the Gospel"
— "Denomination" — "Ordained."
The phrase "minister of the gospel," in G. L., c. 207, § 38, signifies one who ex-
pounds a system of belief based, at least primarily, upon the teachings of
Christ.
The word "denomination," in G. L., c. 207, § 38, may be defined as a religious sect
united upon a common creed or system of faith, which, if it holds that creed
in common with other sects, is further distinguished from these by its belief
in matters of polity or discipline.
An ordained minister, in the sense in which the word "ordained" is employed in
G. L., c. 207, § 38, is one who has been set apart as a public teacher of re-
ligion according to the forms of the particular sect to which he belongs.
An officer of The Salvation Army is not "a minister of the gospel, ordained accord-
ing to the usage of his denomination," within G. L., c. 207, § 38, and is not
authorized to solemnize a marriage within the Commonwealth.
lecietary. ^ou havG askcd my opinion on a number of questions
May^fs. involving the authority of certain persons to solemnize a
marriage in this Commonwealth.
The resolution of questions of fact is, of course, no part
of the duty of this department, and my answers to the
inquiries propounded by you are therefore based exclusively,
in so far as questions of fact are concerned, upon data sup-
plied by you.
Authority to solemnize marriages within the Common-
wealth is governed by G. L., c. 207, § 38, which provides as
follows : —
A marriage may be solemnized in any place within the commonwealth
by a minister of the gospel, ordained according to the usage of his denomi-
nation, who resides in the commonwealth and continues to perform the
functions of his office; by a rabbi of the Israelitish faith, duly licensed by
a congregation of said faith established in the commonwealth, who has
filed with the clerk or registrar of the town where he resides a certificate
of the establishment of tlie synagogue, the date of his appointment thereto
and of the term of his engagement; by a justice of the peace if he is also
clerk or assistant clerk of a town, or a registrar or assistant registrar, in
the town where he holds such office, or if he is also clerk or assistant clerk
of a court, in the city or town where the court is authorized to be held,
or if he has been designated as provided in the following section and has
received a certificate of designation and has qualified thereunder, in the
JAY R. BENTON, ATTORNEY-GENERAL. 151
town where he resides; and it may be solemnized among Friends or
Quakers according to the usage of their societies; but no person shall
solemnize a marriage in the commonwealth unless he can read and write
the English language.
The questions before me are exclusively questions of
statutory interpretations. Whether authority to solemnize
marriages should be given to others than those enumerated
in the existing statute is, of course, for the Legislature alone
to determine; and if at any time it deems it for the public
good to do so, it can readily provide such authority by an
amendment to the statute.
Under the act in its present form, however, no person,
other than a rabbi of the Israelitish faith, a justice of the
peace, a Quaker or a member of the Society of Friends, is
authorized to solemnize a marriage within the Common-
wealth unless he possesses the following qualifications : —
(1) He must be "a. minister of the gospel"; (2) he must be
a member of some "denomination"; (3) he must have been
''ordained" according to the usage of such denomination;
(4) he must be a resident of Massachusetts; (5) he must be
a minister of the gospel of whom it may fairly be said that
he "continues to perform the functions of his office"; and
(6) he must be able to read and write the English language.
In my opinion, the phrase "minister of the gospel" im-
ports a requirement that the person be one who expounds
a system of behef based, at least primarily, upon the teach-
ings of Christ. Attorney General v. Wallace, 7 B. Mon.
(Ky.) 611.
A "denomination" is technically a religious sect, and in-
volves the idea of a common creed or system of faith. See
State V. Township 9, 7 Ohio St. 64. It is thus defined in
the New Standard Dictionary : —
A sect or school having a distinguishing name; especially a body of
Christians united by a common faith and form of worship and discipline.
It may be that the distinguishing feature of a denomination
is not its creed, which it may hold in common with other
152 OPINIONS OF THE ATTORNEY-GENERAL.
denominations, but its belief in matters of polity and
discipline. See The Dublin Case, 38 N. H. 459, 543; Hale
V. Everett, 53 N. H. 9, 92. But in any event, a denomination
is a religious sect distinct from other sects in belief or in
methods of discipline. See Lawrence v. Fletcher, 8 Met. 153,
162. In my opinion, therefore, the word "denomination,"
as used in G. L., c. 207, § 38, may be defined as a religious
sect united upon a common creed or system of faith which,
if it holds that creed in common with other sects, is further
distinguished from these by its belief in matters of polity
or discipline.
The verb "to ordain" is defined as follows in the New
Standard Dictionary : —
To appoint and consecrate or set apart for some special work ; specifi-
cally, in church use, to invest with ministerial or priestly functions,
with the laying on of hands or other ceremonies; as, to ordain a minister.
An ordained minister is one who has been set apart as
a public teacher of religion according to the forms of the
particular sect to which he belongs. Londonderry v.
Chester, 2 N. H. 268. The ordination of a minister has
always been a proceeding of great importance and solemnity,
and marks the entrance of the person ordained upon the
profession of religious teaching. Kihhe v. Antram, 4 Conn.
134, 139; Charleston v. Allen, 6 Vt. 633. It would seem that
thereafter he can be removed from office only by due action
of the constituted authorities of his denomination; and
then, ordinarily, only upon the ground of an essential change
of doctrine, or of a wilful neglect of duty, or of immoral or
criminal conduct. Burr v. The First Parish in Sandwich,
9 Mass. 277; Sheldon v. Congregational Parish in Easton,
24 Pick. 281 ; Reformed Dutch Church v. Bradford, 8 Cowen,
457. In the course of the opinion in the first case cited
above, on page 298, it was said : —
The consequence would be, either that the parish had no remed}' . . .
or that they might dissolve the ministerial contract by their own vote,
JAY R. BENTON, ATTORNEY-GENERAL. 153
thus reducing the office of a minister to a mere tenure at will, which would
be repugnant to the nature of the office.
Two, at least, of the essential features of ordination would
therefore appear to be the solemn and ceremonial nature of
the proceeding, and the fact that its consummation insures
thereafter a certain degree of permanency in office. See
Buck: Mass. Ecclesiastical Law, c. VII.
Turning now to the specific questions propounded by you.
1. Are the officers of The Salvation Army ordained ministers, and
have they authority to solemnize a marriage in this Commonwealth?
The Salvation Army appears to be an organization formed
upon a quasi-military pattern, for the revival of religion
among the masses. It was founded in England by the
Methodist evangelist, William Booth, about 1865, under
the name of the Christian Mission; the present name and
organization were adopted about 1878. ... Its work is
carried on by means of processions, street singing, preaching,
and the Uke, under the direction of officers entitled generals,
majors, captains, etc. Besides its rehgious work, it en-
gages in various reformatory and philanthropic enterprises.
Its doctrines appear to bear a general resemblance to those
common to all Protestant evangelical churches, and es-
pecially to those of Methodism.
Upon joining the organization a "recruit" signs what are
called the ''Articles of War," some of which are as follows: —
1. Having received with all my heart the Salvation offered to me by
the tender mercy of Jehovah, I do here and now publicly acknowledge
God to be my Father and King, Jesus Christ to be my Saviour, and the
Holy Spirit to be my Guide, Comforter and Strength; and that I will,
by His help, love, serve, worship and obey this glorious God through all
time and through all eternity.
2. BeUeving solemnly that The Salvation Army has been created by
God and is sustained and directed by Him, I do here declare my full de-
termination, by God's help, to be a true soldier till I die.
3. I do here and now, and forever, renounce the world with all its
sinful pleasures, companionships, treasures and objects, and declare my
154 OPINIONS OF THE ATTORNEY-GENERAL.
full determination boldly to show myself a soldier of Jesus Christ in all
places and companies, no matter what I may have to suffer, do, or lose
by so doing.
4. And I do here and now call upon all present to witness that I enter
into this undertaking of my own free will, feeling that the love of Christ,
who died to save me, requires from me this devotion of my life to His
service for the salvation of the whole world.
The signing of these "Articles of War" is apparently ac-
companied by appropriate ceremonies, and there are pre-
scribed by "The Orders and Regulations for Field Officers"
ceremonies for funerals and marriages, and for making of
covenants, as, for instance, the "General Holiness Covenant"
and the "War Covenant." There are, in addition, orders
and regulations in great detail for the instruction and drill
of the "soldiers" and for the conduct and behavior of the
"field officer" in various situations and under different
circumstances.
It is unnecessary to decide whether The Salvation Army
may properly be termed a "denomination," because I am
of the opinion that an officer of that organization, authorized
by it to solemnize marriages, is not "an ordained minister,"
within the meaning of the statute. Whatever title an
officer of The Salvation Army may have to be considered
an ordained minister would seem to be derived from his
"commission." This is a document which sets forth that —
I, , as Representative of, and on behalf of, the
said General William Booth, do herebj^ appoint and officially commission
our faithful and trusted comrade with the title
of , to act for me and on behalf of the American
Headquarters in all matters that are involved in the faithful, honorable
and efficient discharge of that office, ever bearing in mind tlie furtherance
and prosperity of the said Salvation Army.
It further contains the following clause : —
And further, it is fully understood and agreed that this Commission
shall only remain in force so long as the holder of it carries out its provi-
sions, and during my will and pleasure, and that the holder of the same
JAY R. BENTON, ATTORNEY-GENERAL. 155
faithfully promises to deliver it up whenever requested to do so by the
said William Booth, General, his successor ... or other commissioner
duly appointed by him, — when it shall become void, and the same is
revocable at the pleasure of the said , such com-
missioner, or his successor.
The apparent lack of any solemn or ceremonial
proceedings connected with the issuance of these com-
missions, and more especially the fact that the officer so
appointed apparently holds his office solely at the pleasure
of the commanders of The Salvation Army, are, in my
opinion, fatal to the claim that this method of commission-
ing officers amounts to or is the equivalent of ordination.
The conception that one man may at his pleasure ordain
ministers, and, again, at his pleasure reduce them to lay-
men, is, I believe, contrary to the whole idea of ordination
as it was and is understood in this Commonwealth.
2. What constitutes a denomination for the purpose of ordination of
ministers who may perform a marriage in this Commonwealth?
I have already stated my opinion upon this point while
considering the general principles to be applied to the other
more specific questions which you ask.
3. Do pastors of unincorporated, independent religious bodies uncon-
nected with any central governing body or conference, have authority to
perform a marriage, within the meaning of G. L., c. 207, § 38?
In the general form in which you state it, it is, I believe,
impossible to answer this question "yes" or "no." There
is nothing in the various facts supposed by you in your
question which would, of itself, prevent such a religious
body from being a denomination within the meaning of
the statute. Each case, however, must be determined on
its specific facts. Obviously, some form of organization,
some established rules and some established usage must
exist in order that it could be said that a representative of
such a society was "a minister of the gospel ordained ac-
cording to the usage of his denomination."
156 OPINIONS OF THE ATTORNEY-GENERAL.
4. Is an ordained clergyman who has resigned his pastorate and re-
tired, but who occasionally officiates at funerals and like ceremonies,
authorized to perform a marriage?
5. Is an ordained clergjinan who has given up his pastorate to engage
in business other than that connected with the ministry, but who some-
times acts at funerals and like ceremonies, autliorized to perform a mar-
riage?
Your fourth and fifth inquiries may be considered together.
In each the issue is the same : Can the clergyman in question,
upon all the facts of the case, fairly be said to be one ''who
resides in the Commonwealth and continues to perform the
functions of his office?" In my opinion, it is not sufficient
that he remain in good standing upon the records of his
church. In addition, it must appear that he is in fact
continuing to perform the functions of his office. The mere
fact that he engaged in other pursuits would not, of course,
prevent him from coming within the terms of the statute.
In your fourth inquiry, however, you use the word "retired,"
and in your fifth inquiry the expression "who has given up
his pastorate to engage in business." This would suggest
that in neither case could it fairly be said that the clergy-
man in question was continuing to perform the functions
of his office. The issue is, however, in each whether this can
or cannot fairly be said, in the light of all the concrete
circumstances of that particular case.
jay r. benton, attorney-general. 157
Constitutional Law — Education — College — Degrees
— Instruction by Professors of Institutions char-
tered UNDER the IjAWS OF A FOREIGN StATE.
The provisions of G. L., c. 266, § 89, prevent institutions chartered under the laws
of a foreign State from coming into Massachusetts for the purpose of enrolling
students to receive personal class instruction here for which degrees are offered,
even though the instructors are visiting professors from the institutions in
question.
Such method of instruction is not interstate commerce within the principle laid
down in the case of International Textbook Co. v. Pigg, 217 U. S. 91, and ac-
cordingly constitutes doing business within this Commonwealth, and there-
fore is subject to its laws.
You request my opinion on the following questions : —
To the Coni-
missioner of
Education.
1923
1. May institutions chartered under the laws of a foreign State come May is.
into Massachusetts for the purpose of enroUing students to receive per-
sonal class instruction here for which degrees are offered, even though
the instructors are visiting professors from the institutions in question?
2. Does this method of instruction come within the principle laid down
in the case of the International Textbook Co. v. Pigg, 217 U. S. 91?
G. L., c. 266, § 89, provides as follows: —
Whoever, in a book, pamphlet, circular, advertisement or advertising
sign, or by a pretended ^^Titten certificate or diploma, or otherwise in
writing, knowingly and falsely pretends to have been an officer or teacher,
or to be a graduate or to hold any degree, of a college or other educational
institution of this commonwealth or elsewhere, which is authorized to
grant degrees, or of a public school of this commonwealth, and whoever,
without the authorit}^ of a special act of the general court granting the
power to give degrees, offers or grants degrees as a school, college or as a
private individual, alone or associated with others, shall be punished by
a fine of not more than one thousand dollars or by imprisonment for not
more than one year, or both. Any individual, school, a;ssociation, cor-
poration or institution of learning, not having power to confer degrees
under a special act of the general court, using the designation of "univer-
sity" or "college" shall be punished by a fine of one thousand dollars;
but this shall not apply to any educational institution whose name on
July ninth, nineteen hundred and nineteen, included the word "univer-
sity" or "college."
A literal interpretation of this statute would seem to
forbid any individual, school, association, corporation or
158 OPINIONS OF THE ATTORNEY-GENERAL.
institution of learning, not having the power to confer
degrees under a special act of the General Court of this
Commonwealth, from offering or granting degrees as a
school, college or private individual, and would also seem,
by its terms, to prohibit the use of the designation of "uni-
versity" or "college" by any individual, school, association,
corporation or institution of learning not having the power
to confer degrees under a special act of the General Court,
subject to the exception therein contained relative to an
educational institution whose name on July 9, 1919, in-
cluded the word "university" or "college."
This statute has been construed in the case of Common-
wealth V. New England College of Chiropractic, 221 Mass.
190, wherein the court says: —
Its obvious purpose is to suppress the kind of deceit which arises from
the pretence of power to grant academic degrees, and to protect the pub-
He from the evils likely to flow from that variety of misrepresentation and
imposition. ... It aims to ensure to the people of the Commonwealth
freedom from deception, when dealing with those who put forward pro-
fessions of educational achievement such as ordinarily is accompanied
by a collegiate degree from an institution authorized to grant it and to
make certain that those who use such symbols have had the opportunity
of being trained according to prevailing standards in some school of recog-
nized standing, under teachers of reputation for learning. . . .
The statute should be interpreted in the light of its design to effectuate
its purpose so far as the words used reasonably construed permit of tliis
result.
I am accordingly of the opinion that your first question
must be answered in the negative.
The Supreme Court of the United States has decided,
in the case of International Textbook Co. v. Pigg, supra,
that where there was a continuous interstate traffic in text-
books and apparatus for a course of study, pursued by means
of correspondence, the movements in interstate commerce
bring the subject-matter within the domain of Federal
control, and exempt it from the burden imposed by State
legislation. (See VII Op. Atty. Gen. 52.) In this respect
JAY R. BENTON, ATTORNEY-GENERAL. 159
the method of instruction outhned in your first question
does not come within the principle laid down in the case of
International Textbook Co. v. Pigg, supra, and would ac-
cordingly constitute "doing business" within this Com-
monwealth, and therefore be subject to its laws. See
International Textbook Co. v. Connelly, 124 N. Y. Supp.
603; International Textbook Co. v. Gillespie, 229 Mo. 397;
International Textbook Co. v. Lynch, 81 Vt. 101; Inter-
national Textbook Co. v. Peterson, 133 Wis. 302; Blumen-
stock Brothers Advertising Agency v. Curtis Publishing Co.
252 U. S. 436, and cases cited.
Credit Unions — Small Loans — License.
A credit union is not engaged in the business of making small loans, within the
meaning of G. L., c. 140, § 96, and is not required to obtain a license from the
Commissioner of Banks.
You request my opinion upon the following question: visor^lu"oan"
Agencies.
1923
Do credit unions fall within the provisions of the small loans act, and ^^^;yJJ-
are they required to secure a license from the Commissioner of Banks,
under G. L., c. 140, § 96?
The act authorizing the incorporation of credit unions was
approved May 21, 1909 (St. 1909, c. 419). Section 25 of
said chapter provides, in part, that "the provisions of chapter
six hundred and five of the acts of the year nineteen hundred
and eight shall apply." St. 1908, c. 605, is an act entitled
"An Act to regulate further the business of making small
loans." Section 1 of that act provides: —
No person, firm or corporation shall engage in the business of making
small loans of two hundred dollars or less upon which a rate of interest
greater than twelve per cent per annum is charged, and for which no
security, other than a note or contract with or without an endorser is
taken, without first obtaining a license for carrying on such business in
the city or town in which the business is to be transacted. . . .
160 OPINIONS OF THE ATTORNEY-GENERAL.
Sections 2 and 3 of said chapter 605 regulate the amount
of the loan and interest.
Considering these two acts together, it is clear that the
Legislature intended to require of credit unions the securing
of a hcense before making loans, and to place a limitation
on the amount of interest to be charged.
From the opinion of the Attorney General to the then
Supervisor of Loan Agencies dated August 16, 1912, to which
my attention has been called, it appears that the Attorney
General was of the opinion that credit unions were re-
quired to secure a license under St. 1911, c. 727, § 3 (now
G. L., c. 140, § 96), which provided: —
No person, partnership, corporation, or association shall directly or
indirectly engage in the business of making loans of three hundred dol-
lars or less, . . .
It also appears that that opinion was based upon the fact
that St. 1909, c. 419, expressly made St. 1908, c. 605, ap-
plicable to credit unions. But Gen. St. 1915, c. 268, en-
titled "An Act relative to the incorporation and manage-
ment of credit unions," repealed St. 1909, c. 419, and also
St. 1914, c. 437, the latter chapter relating to rural credits.
Gen. St. 1915, c. 268 (now G. L., c. 171 — Credit Unions),
contains no provision, as did the statute of 1909, which in
any way connects the small loans act with credit unions,
unless it be G. L., c. 140, § 96 (St. 1911, c. 727, § 3), above
referred to.
The question presented, therefore, is: Is a credit union
engaged in the business of making loans, and thereby
required to secure a license?
G. L., c. 171, § 5, provides: —
A credit union may receive the savings of its members in payment for
shares or on deposit; may lend to its members at reasonable rates, or
invest, as hereinafter provided, the funds so accumulated; and may
undertake such other activities relating to the purpose of the association
as its by-laws may authorize. Section forty-eight of chapter one him-
(Ired and seventy shall not appl}"" to credit unions.
JAY R. BENTON, ATTORNEY-GENERAL. 161
Section 13 provides that the directors shall determine the
rate of interest on loans and deposits. Section 11 provides
that the members shall fix the maximum amount to be loaned
any one member. Section 11 also provides that the meiJi-
bers may at any annual or special meeting review any decision
of the credit committee or of a board of directors by a three-
fourths vote of the members present and entitled to vote.
Section 20 provides the amount of interest that may be
charged on farm lands, but no limitation is placed upon
other loans. Section 23 provides for a distribution of
dividends among the members. A credit union can lend to
members only. V Op. Atty. Gen. 40.
It is significant that the former statutory provision that
the small loans act should apply to credit unions was specifi-
cally repeated in 1915. It is obvious that loans to members
of a credit union will, in many instances, be $300 or less,
but, in my judgment, such transactions cannot be construed
as ''being engaged in the business of making small loans."
A credit union is not carried on for profit. In fact, mone}^
earned is divided among the members in the way of divi-
dends.
In my opinion, the small loans act does not now apply to
credit unions, and it follows that a license is unnecessary.
I am also of the opinion that G. L., c. 140, § 114, does not
include credit unions.
Firearms — Minors — Rifle Clubs.
Under G. L., c. 140, § 130, as amended by St. 1922, c. 485, § 8, rifle clubs made up
of minors may be supplied with firearms and directed in their proper use by
competent adult instructors, without violation of law.
You state that the Ordnance Department, Massachusetts TotheAdju-
^ _ -^ ' tant General.
National Guard, is interesting itself in the organization of ^^^^fg
junior rifle clubs, and you request information as to whether
the formation of such rifle clubs, made up of minors, for
target practice only, under responsible adult supervision,
162
OPINIONS OF THE ATTORNEY-GENERAL.
in any way violates any existing law of this Commonwealth.
G. L., c. 140, § 130, as amended by St. 1922, c. 485, § 8,
provides as follows : —
Whoever sells or furnishes to a minor under the age of fifteen, or to
an unnaturalized foreign born person who has not a permit to carry fire-
arms under section one hundred and thirty-one, any firearm, air gun or
other dangerous weapon or ammunition therefor shall be punished by a
fine of not less than ten nor more than fifty dollars, but instructors and
teachers may furnish mihtary weapons to pupils for instruction and drill.
I am accordingly of the opinion that under this statute
such junior rifle clubs may be supphed with firearms and
drilled in their proper use by competent adult instructors,
without violation of law.
To the Board
of Conciliation
and Arbi-
tration.
1923
May 19.
Board of Concilation and Arbitration — Jurisdiction
— Middlesex & Boston Street Railway Company.
The question whether an employer, by entering into an agreement with his em-
ployees, had limited his right, as a matter of law, to discharge his employees,
is a judicial question; and the Board of Conciliation and Arbitration has no
jurisdiction, under G. L., c. 150, § 5, to take any action upon such question.
You have requested my opinion as to whether the Board
of Conciliation and Arbitration has jurisdiction to hear
and consider certain matters under G. L., c. 150, § 5, relative
to a controversy between the Middlesex & Boston Street
Railway Company and its employees. You state that the
facts are as follows:
An agreement entered into between the company and its
employees provides, in part, that whenever any questions
arise which cannot be mutually adjusted they shall be
submitted, at the request of either party, to a board of
arbitration, to be selected in a certain manner. Prior to
this agreement, the company had promulgated a rule
relative to liability for collision of cars, which was posted
on the company's premises and which provided that any
person violating the rule would be discharged. The agree-
JAY R. BENTON, ATTORNEY-GENERAL. 163
ment made no reference to the rule. An employee was
discharged by reason of a car operated by him colHding with
another car, and a controversy arose relative to his discharge.
The employees requested the company to submit the rule
itself to arbitration, and the company refused. Under G. L.,
c. 150, § 5, the employees petitioned the Board of Concili-
ation and Arbitration to give a hearing and make a decision
upon the responsibility for the collision and upon the severity
of the penalty. The company contends that the agree-
ment was made in the light of the said rule and was modified
by it, and that the board has no jurisdiction to consider
the question whether the penalty imposed upon the em-
ployee was too severe.
The precise question upon which you request my opinion
is whether the board has jurisdiction to give a hearing and
make a decision upon the rule itself, assuming that the
employee was responsible for the collision.
G. L., c. 150, § 5, confers jurisdiction, under certain
circumstances, upon the board to give a hearing and make
a decision in a controversy "not involving questions which
may be the subject of an action at law or suit in equity."
This controversy involves the question whether the com-
pany, by entering into an agreement with its employees,
had limited its right as a matter of law to discharge its
employees. That is a judicial question.
I am therefore of the opinion that the controversy involves
a question ''which may be the subject of an action at law
or suit in equity," and that you have no jurisdiction to
take any action with respect to the rule itself against the
will of the company.
May 21.
164 opinions of the attorney-general.
Constitutional Law — Police Power — Registration
OF Dealers in Milk.
The right of the Legislature, under the police power, to regulate the lawful business
of individuals is subject to the limitations that it must be reasonable and not
arbitrary, and that the regulation must be for the benefit of the public at large.
The question whether a statute interfering with the right to carry on business is a
proper exercise of the police power is subject to judicial review.
A statute requiring persons engaged in the business of distributing milk to secure
a rating by some credit agency, or to give a bond upon such terras as a State
official may require, or to furnish a sworn financial statement of condition
and to be subject to a public rating, as a prerequisite to doing business, would
be unconstitutional, if enacted.
clmmiueeln You Esk iiiy opinioii as to the constitutionality of House
Agr^^uuure. g-j| ^^^ ggg^ entitled "An Act to require registration of
contractors and dealers in milk." The bill proposes to
amend G. L., c. 94, by inserting after section 39 a new
section, called Section 39A, which is, in part, as follows : —
All dealers and contractors engaged in the business of buying, handling,
selling or delivering milk or cream, except producers who sell and deliver
only milk produced by cows on their own farms, shall each year register
with the commissioner of agriculture on or before the first day of Febru-
ary. Every application for registration shall be made on a form furnished
by the commissioner and shall be accompanied by either evidence satis-
factory to the commissioner that the api^licant has a rating by a credit
agency acceptable to said commissioner, or a bond in such terms and for
such amount as the commissioner may require, or a sworn financial state-
ment of the condition of the business of the applicant on the first day of
January of the year for which the application is made.
The section further provides that the information so sub-
mitted shall be held confidential, that the Commissioner
shall refuse to register an applicant until the requirements
for registration have been met, and that the Commissioner
shall annually send to the inspector of milk in each city
and town a copy of the list of registered contractors and
dealers in milk. The section continues : —
. . . No inspector of milk shall issue any license under the following
two sections to contractors or dealers except those whose names are in-
cluded in the list furnished bv the commissioner. The commissioner
JAY R. BENTON, ATTORNEY-GENERAL. 165
shall prepare a rating list of those registered dealers and contractors not
rated by any acceptable credit agency or not bonded, and shall furnish
a copy of such list to any citizen upon application. . . .
The section concludes with provisions for fines and penalties
for failure to comply with the requirements of the section.
The right to pursue any lawful occupation to obtain a
livelihood is secured to every one under the Constitution
of Massachusetts and the Constitution of the United States.
This right, however, is subject to reasonable regulation by
the State in the exercise of the police power, in the interest
of the public health, the public safety, the public morals and,
in a more limited sense, in the interest of the public welfare.
This general principle has been affirmed in innumerable
decisions. Commonwealth v. Alger, 7 Cush. 53, 84-86;
Commonwealth v. Strauss, 191 Mass. 545, 553; Wyeth v.
Cambridge Board of Health, 200 Mass. 474, 478; Deivey v.
Richardson, 206 Mass. 430; Lawton v. Steele, 152 U. S.
133, 136, 137; McLean v. Arkansas, 211 U. S. 539; Hall v.
Geiger-Jones Co., 242 U. S. 539; 27 Harvard Law Review,
297.
There are many kinds of business the doing of which in
this Commonwealth is regulated by statutes requiring
persons engaged in the business to obtain a license from some
public authority. Occupations so regulated include those
of auctioneers (G. L., c. 100, § 2), transient vendors, hawk-
ers and pedlers (G. L., c. 101, §§3, 22), brokers engaged
in selhng securities (St. 1921, c. 499, § 8), physicians and
others whose profession or occupation is closely connected
with the public health (G. L., c. 112), innholders, keepers of
intelligence offices, dealers in second-hand automobiles,
pawnbrokers and persons engaged in the business of making
small loans (G. L., c. 140, §§ 2, 42, 59, 70, 96), and insurance
agents (G. L., c. 175, § 163). Such requirements have been
sustained by a number of decisions of our court. Comni,o7i-
wealth V. Roswell, 173 Mass. 119 (insurance agents); Com-
monwealth V. Danziger, 176 Mass. 290 (pawnbrokers);
166 OPINIONS OF THE ATTORNEY-GENERAL.
Commonwealth v. Hana, 195 Mass. 262 (pedlers) ; Common-
wealth V. Porn, 196 Mass. 326, 329 (physicians); Dewey
V. Richardson, 206 Mass. 430 (makers of small loans). See
also Brazee v. Michigan, 241 U. S. 340 (employment agen-
cies); Hall V. Geiger-Jones Co., 242 U. S. 539 (dealers in
securities). Dealers in milk are now required, for the
protection of the public, to obtain a license to sell milk
(G. L., c. 94, § 40). Such a requirement is clearly consti-
tutional. Cf. Commonwealth v. Titcomb, 229 Mass. 14.
In a few instances our statutes require persons engaged
in certain occupations to give bonds for the protection of
the public. Requirements of that sort are to be found in
statutes relating to collection agencies (G. L., c. 93, §§ 24,
25), pilots (G. L., c. 103, § 14), public warehousemen (G. L.,
c. 105, §§ 1, 3) and private bankers (G. L., c. 169, §§2, 3).
A statute of the State of New York requiring persons en-
gaging in the business of receiving deposits of money for
safe keeping or for transmission to obtain a license and give
a bond was upheld in Engel v. O'Malley, 219 U. S. 128.
There seem to be two limitations upon the right of the
Legislature, under the police power of the State, to regulate
the lawful business of individuals. The first of the two
limitations is that the statute must have been passed as a
reasonable and appropriate exercise of the police power,
and must not be an arbitrary interference with the right
of the individual to do business. Commonwealth v. Strauss,
191 Mass. 545, 553; Wyeth v. Cambridge Board of Health,
200 Mass. 474; Opinion of the Justices, 220 Mass. 627;
Lochner v. New York, 198 U. S. 45, 56; McLean v. Arkansas,
211 U. S. 539; Smith v. Texas, 223 U. S. 630; Adams v. Tan-
ner, 244 U. S. 590. The second of the two limitations is that
the regulation must be for the benefit of the public at large.
Commonwealth v. St7'auss, 191 Mass. 545, 553; Opinion of
the Justices, 220 Mass. 627, 632. In the former case the
court said : —
JAY R. BENTON, ATTORNEY-GENERAL. 167
The question is whether, at the time of the passage of this statute,
there were conditions actually existing or reasonably anticipated which
called for such legislative intervention in the interest of the general public.
The rule that the police power of a State is subject to the
two limitations stated is clearly enunciated in the case of
Lawton v. Steele, 152 U. S. 133, 137, in the following language:
To justify the State in thus interposing its authority in behalf of the
public, it must appear, first, that the interests of the public generally, as
distinguished from those of a particular class, require such interference;
and, second, that the means are reasonably necessary for the accomplish-
ment of the purpose, and not unduly oppressive upon individuals. The
legislature may not, under the guise of protecting the public interests,
arbitrarily interfere with private business, or impose unusual and un-
necessary restrictions upon lawful occupations.
The question whether a statute interfering with the right
to carry on business is a proper exercise of the police power
is subject to judicial review. Wyeth v. Cambridge Board of
Health, 200 Mass. 474; Lawton v. Steele, 152 U. S. 133, 137;
Lochner v. New York, 198 U. S. 45, 56, 57; Adams v. Tanner,
244 U. S. 590, 596.
An exception to the general rule that a restriction of the
right to carry on a lawful occupation must be for the benefit
of the general public seems to be made in Engel v. O'Malley,
219 U. S. 128. The court there held that the statute was
constitutional, although passed, apparently, for the benefit
of a particular class, that class being ignorant and helpless
depositors, largely foreign, and peculiarly in need of pro-
tection by the Legislature. The court said (pp. 136,
137) : —
The (/Masi'-paternal relations shown in argument and by documents to
exist between those following the plaintiff's calling and newly-arrived
immigrants justifies a supervision more paternal than is needed in ordi-
nary affairs.
In my judgment, no general principle by which different
classes of the community may be singled out for special
benefits is to be deduced from this case.
168 OPINIONS OF THE ATTORNEY-GENERAL.
Milk dealers are already required to take out licenses,
issued by milk inspectors, for the protection of the general
public from danger of impure milk. The obvious purpose
of the proposed statute is to impose further restrictions
upon dealers for the protection of producers of milk by
paternalistic provisions requiring persons engaged in the
business of distributing milk to secure a rating of some
credit agency, or to give bonds the conditions of which are
entirely within the discretion of the Commissioner, or to make
statements disclosing the condition of their business and then
to be subject to a public rating by the Commissioner. If
such requirements are constitutional, they may be appHed
to many industries carried on in the Commonwealth. They
are not for the benefit of the community at large, but for
the class of milk producers only.
A somewhat similar statute enacted by the Legislature
of the State of Maine was held to be unconstitutional in
State V. Latham, 115 Me. 176. The court there held a
statute, requiring persons purchasing cream or milk for the
purpose of reselling or manufacturing into other products to
pay the producers semimonthly, to be unconstitutional.
They said it gave the milk producer a strong club to aid in
the collection of debts which is not given to other creditors,
that there was no reasonable ground of discrimination
between producers of milk and producers of hay, potatoes,
oats or other products; that grocery men and dealers in
dry goods might with equal reason be given similar aid in
collecting their bills; and that the statute was class legis-
lation, with discriminations not based upon any real dif-
ference in situation or condition.
I am of opinion that these considerations are equally
appUcable to the bill before me. If, for the benefit of the
milk producers, milk dealers should be required to furnish
information as to their financial standing, or a bond, then
there is no reason why similar disclosures and undertakings
should not be given by dealers in other commodities for
the benefit of producers and manufacturers. Such requii'e-
JAY R. BENTON, ATTORNEY-GENERAL. 169
ments, however, would in large measure hamper the doing
of lawful business and arbitrarily restrict persons in their
right to carry on such business. In my opinion, such
restrictions are outside the Hne of what is permissible.
The bill may be criticized also because it makes no pro-
vision whatever as to the amount of the bond and the con-
ditions under which it is to be given, and because the other
requirements could not be met by any person not having
an established business. I do not, however, base my
ruling on these objections to the proposed measure, but on
the fundamental objections which I have stated.
Constitutional Law — Delegation of Legislative
Powers to Administrative Officials — Unfair Dis-
crimination — Regulation of Dealers in Milk
AND Cream.
An act authorizing the secretary of the Department of Agriculture to make such
rules and regulations as he sees fit for dealers in milk and cream, without other
limitation upon the power delegated than that such rules and regulations should
be "in the interest of the public health and welfare," would amount to a dele-
gation to an administrative official of the power to enact legislation, and would
be contrarj' to the Constitution of Massachusetts.
An act for the regulation of dealers in milk and cream, that applies only to dealers
"who buy, purchase, receive or collect said milk or cream to be sold, delivered
or exposed for sale at a point more than six miles from the point of collection
or receipt or purchase," makes an unreasonable and arbitrary discrimination,
which would render the act unconstitutional.
An act, the dominant purpose of which is to impose restrictions upon milk dealers
for the financial protection of milk producers, by requiring the former to secure
a license and give a bond, the terms of which are wholly within the discretion
of an administrative official, would be unconstitutional: that purpose being
one which it is beyond the constitutional powers of the Legislature to effec-
tuate.
There has been transmitted to me a copy of the order House^of Rep-
adopted by the House of Representatives requesting my resenutives.
opinion as to whether House Bill No. 334, if enacted into ^^Ll^.
law, would be constitutional. In my opinion, it would not.
The bill is in the following terms : —
170 OPINIONS OF THE ATTORNEY-GENERAL.
An Act to authorize the Secretary of the Department of Agri-
culture TO MAKE Rules and Regulations in Regard to the
Collecting, Receipt and Purchase of Milk or Cream in Cer-
tain Instances.
Section 1. The secretary of the department of agriculture shall
make and issue rules and regulations to all dealers in milk or cream, who
buy, purchase, receive, or collect said milk or cream to be sold, delivered,
or exposed for sale, at a point more than six miles from the point of col-
lection or receipt or purchase.
Section 2. The secretary of the state board of agriculture may make
such examination as he deems fit, into the financial responsibilities of
dealers of milk or cream who come under the provisions of this act. And
shall by the issuing of a license, or permit to do business, or the requiring
of a bond, secure the obedience to such rules and regulations as he may
make in the interest of the public health and welfare.
Section 3. Any person, firm, partnership or association who shall
collect, receive, or buy, cream or milk, the same to be sold, delivered, or
exposed for sale, at a point not less than six miles from the point of col-
lection, receipt or purchase, who has not first received from the secre-
tary of the state board of agriculture such license or permit, as the sec-
retary may demand, shall forfeit a sum not to exceed five hundred dollars
for each offence.
The bill purports to give to the secretary of the Depart-
ment of Agriculture what appears to be undefined and almost
unlimited power to "make such rules and regulations" as
he sees fit, for dealers in milk and cream. No limitation
is imposed upon his discretion beyond the provision con-
tained in the last sentence of section 2, that the rules and
regulations made by him shall be "in the interest of the
public health and welfare."
The power to enact laws is vested exclusively in the
General Court, except so far as modified by the initiative
and referendum amendment, and cannot be surrendered
or delegated to any other agency. Wyeth v. Cambridge
Board of Health, 200 Mass. 474, 481 ; Opinion of the Justices,
239 Mass. 606. As was said in the latter opinion (pages
610,611): —
I
JAY R. BENTON, ATTORNEY-GENERAL. 171
It is a power which cannot be surrendered or delegated or performed by
any other agency. The enactment of laws is one of the high prerogatives
of a sovereign power. It would be destructive of fundamental concep-
tions of government through republican institutions for the representa-
tives of the people to abdicate their exclusive privilege and obligation to
enact laws.
There are no exceptions to the principle that the General Court cannot
delegate, surrender or transfer to any other power the function of enact-
ing statutes general in their scope and operation.
It is true that the Legislature may confer upon adminis-
trative officials the power, in the execution of a law, to
formulate rules, determine facts and exercise a limited
discretion in matters of detail; but the power so granted is
not to frame a general rule of law, but to apply a rule, when
enacted, to particular situations. In my judgment, the
proposed legislation in this respect goes far beyond the
permitted line, and would be contrary to the Constitution
of this Commonwealth.
Furthermore, the bill is applicable only to dealers "who
buy, purchase, receive, or collect said milk or cream to be
sold, delivered, or exposed for sale, at a point more than
six miles from the point of collection or receipt or purchase."
There appears to be no sound basis for such a distinction
between dealers. In my opinion, the discrimination thus
made is unreasonable and arbitrary, and therefore un-
constitutional. Commonwealth v. Hana, 195 Mass. 262,
266, 267; V Op. Atty. Gen. 56.
A further ground of invalidity is that it is manifest, from
section 2, that the dominant purpose of the proposed act is
to impose restrictions upon milk dealers for the financial
protection of milk producers, by requiring persons engaged
in the business of distributing milk to secure a license and
give a bond, the terms of which are wholly within the dis-
cretion of an administrative official. That purpose is one
which, in my opinion, it is beyond the constitutional power
of the Legislature to effectuate. The matter is considered at
172 OPINIONS OF THE ATTORNEY-GENERAL.
length in an opinion rendered by the Attorney General on
the constitutionality of House Bill No. 396, at the request
of the committee on agriculture. VII Op. Atty. Gen. 164.
Insurance — Broker's License — Fee — Veteran —
Service in the Army or Navy of the United States
"in Time of War or Insurrection" — Punitive
Expedition into Mexico.
An applicant for an insurance broker's license under G. L., c. 175, § 166, is not
exempt from paying the fee prescribed by said section, on the ground that
he was a member of the Massachusetts National Guard, which was in the
service of the Federal government during the punitive expedition into Mexico
in 1916.
Such service does not constitute service in the Army or Navy of the United States
"in time of war or insurrection," within the meaning of said statute.
missk)nw°of' You request my opinion as to whether a certain applicant
^"i923"°^' for an insurance broker's license under G. L., c. 175, § 166,
^^Z^- is exempt from paying the fee prescribed by said section, on
the ground that the applicant in question was a member of
the Second Regiment, Company C, of the Massachusetts
National Guard, which was in the service of the Federal
government during the punitive expedition into Mexico
several years ago. The applicant contends that his service
in this regiment on this occasion entitles him to exemption
from the fee.
G. L., c. 175, § 166, provides, in part, as follows: —
The commissioner may, upon the payment of a fee of ten dollars, issue
to any suitable person of full age resident in the common\vealth, or resi-
dent in any other state granting brokers' licenses or like privileges to
residents of the commonwealth, a license to act as an insurance broker
to negotiate, continue or renew contracts of insurance or annuity or pure
endowment contracts, or to place risks, or effect insurance with any quali-
fied domestic company or its agents, or with the lawfully constituted and
licensed resident agents in this commonwealth of au}^ foreign company
duly admitted to issue such policies or contracts therein upon the follow-
ing conditions: . . . No fee for a license issued hereunder shall be re-
quired of any soldier, sailor or marine resident in this commonwealth
JAY R. BENTON, ATTORNEY-GENERAL. 173
who has served in the army or navy of the United States in tune of war
or insurrection and received an honorable discharge therefrom or release
from active duty therein, if he presents to the commissioner satisfactory
evidence of his identity.
The decision of your question accordingly rests upon
whether or not the service of the apphcant on the Mexican
border constitutes service in the Army or Navy of the
United States "in time of war or insurrection," within the
meaning of said statutes.
U. S. Const., art. 1, § 8, prescribes the methods of de-
claring war in the following language : —
The congress shall have power ... to declare war, grant letters of
marque and reprisal, and make rules concerning captures on land and
water; — to raise and support armies, but no appropriation of money
to that use shall be for a longer term than two years; — to provide and
maintain a navy; — to make rules for the government and regulation of
the land and naval forces; — to provide for calling forth the militia to
execute the laws of the Union, suppress insurrections, and repel invasions;
— to provide for organizing, arming, and disciplining the militia, and for
governing such part of them as may be employed in the service of the
United States, reserving to the states respectivelj^, the appointment of
the officers, and the authority of training the militia according to the
discipline prescribed by congress; . . .
It is evident that at the time of this emergency in 1916
the Congress of the United States never declared war on
Mexico as prescribed in the Constitution. The language
of Congress, contained in Public Laws, 1916, c. 211, is
indicative of how the emergency was considered at the time,
namely : —
Joint Resolution to authorize the President to draft members of the
National Guard and of the organized militia of the several states, terri-
tories, and the District of Columbia and members of the National Guard
and Militia Reserves into the military service of the United States under
certain conditions, and for other purposes.
Resolved by the Senate and House of Representatives of the United States
of America in Congress assembled, That in the opinion of the Congress
of the United States an emergency now exists which demands the use of
174 OPINIONS OF THE ATTORNEY-GENERAL.
troops in addition to the regular army of the United States and that the
President l)e, and he is hereby, authorized to draft into the military ser-
vice of the United States . . , any or all members of the National Guard
and of the organized militia of the several states, territories and the
District of Columbia and any and all members of the National Guard
and organized militia reserves, to serve for the period of the emergency,
Sec. 4. That whenever in time of war or public danger or during the
emergency declared in section one of tliis resolution, . . ,
Approved, July 1, 1916.
It is to be observed that in said resolution Congress refers
to the 1916 Mexican border service as an emergency and
not a war. The wording of U. S. PubUc Laws, c. 143,
enacted July 9, 1918, at page 873, is likewise significant of
the manner in which the United States government considers
the Mexican border service. This section reads, in part,
as follows : —
That the Secretary of War be, and he is hereby, authorized and directed
to procure a bronze medal, ... to be presented to each of the several
officers and enlisted men, ... of the National Guard who, under the
orders of the President of the United States, served ... in the war with
Spain, . . . and who served on the Mexican border in the yeai's nine-
teen hundred and sixteen and nineteen hundred and seventeen and who
are not eligible to receive the Mexican service badge heretofore authorized
by the President; . . .
The phraseology used in bestowing honors upon those
who participated in the Mexican border service indicates
that a distinction is made between that service which our
National Guard performed under the call of the President
in 1916, and the service in a war. The statute designates
specifically a medal for service ''in the war with Spain,"
while the medal for those who went into Mexico is called
"the Mexican service badge," and the medal for those
who served on the border is specified as the medal for those
"who served on the Mexican border."
There appears to be a sound distinction between the
i
JAY E. BENTON, ATTORNEY-GENERAL. 175
existence of "a state of war" and "time of war," especially
as relating to the government of soldiers and the jurisdiction
of military law. Accordingly, it was held in a report of the
Judge Advocate General, dated March 21, 1905 (c. 17609),
approved by Secretary Taft, that the operations of the
expeditionary force in China constituted a condition of war,
so that a soldier, who deserted during said operations,
deserted in time of war, and therefore was not entitled to
the benefit of the statute of limitations.
While it was not contended that at any time the United
States and the Imperial Government of China were at war,
it was held that we were prosecuting our right to protect
our representatives from the body of Chinese who were
seeking to capture or kill them, and, accordingly, a state
of war existed within the meaning of the statutes; the parties
to the war, so far as concerned us, being on the one side
the United States and on the other a certain proportion
of the inhabitants of the Chinese Empire who were, from
representation of the Imperial Chinese Government, in
revolt.
Similarly, after the ratification of the treaty of peace with
Spain, the United States was regarded as at peace, except
locally in the Philippine Islands, where a state of war
legally continued until peace was proclaimed therein by
the President. (See VI Op. Atty. Gen. 407.)
In an opinion of the Judge Advocate General, dated May
9, 1916, to the Adjutant General (Opinions Judge Advocate
General, 99-001), on the following question: "Before what
tribunal should a member of the expedition in Mexico be
tried for murder or rape?" Judge Advocate General E. H.
Crowder says : —
I am therefore of the opinion that while war is not recognized as exist-
ing between the United States and Mexico, the actual conditions under
which the field operations in Mexico are being conducted are those of
actual war; that within the field of operations of the expeditionary force
in Mexico, it is "time of war" within the meaning of the 58th Article of
War; and that the crimes mentioned in that article should therefore be
176 OPINIONS OF THE ATTORNEY-GENERAL.
tried by general court-martial in accordance with its provisions. The
opposite ruUng would give immunity for the capital crimes specified in
the 58th Article of War, since it could not have been intended that, under
such conditions, United States soldiers would be turned over to the
authorities of Mexico for trial.
A similar question arose in California where, in construing
section 13^ of art. XIII of the California State Constitution,
— which provides: "The property to the amount of one
thousand dollars of every resident in this state who has
served in the Army, Navy, Marine Corps or Revenue
Marine Service of the United States in time of war, and
received an honorable discharge therefrom; . . . shall be
exempt from taxation," — the Attorney General of the
State of California ruled that "the trouble on the Mexican
border was not a Var' within the meaning of that consti-
tutional provision." See Digest of Opinions, Judge Ad-
vocate General, p. 119, 1919.
I am accordingly of the opinion that the military service
of the applicant for the insurance broker's license under
G. L., c. 175, § 166, as outlined in your communication,
does not exempt him from paying the fee prescribed by said
section, inasmuch as said service did not constitute service
in the Army or Navy of the United States "in time of war
or insurrection," within the meaning of the statute.
Taxation — Exemption — Property of Grand Army
OF the Republic.
Under G. L., c. 59, § 5. cl. 5th, as amended by St. 1921, c. 474, and by St. 1922,
c. 222, portions of a building belonging to a post of the Grand Army of the
Republic, which are let to tenants, are not e.Kempt from taxation, and should
be separately valued and taxed.
^ssfonw^of" ^^^ have requested my opinion, under the provisions of
SiTiwion. Gr. L., c. 58, § 1, whether real estate belonging to a post of
mS^23. the Grand Army of the Repubhc Corporation located in
Springfield, the total valuation of which is below $100,000,
!!
1
JAY R. BENTON, ATTORNEY-GENERAL. 177
is exempt from taxation under G. L., c. 59, § 5, cl. 5th, as
amended. The assessors report to you that the income from
said real estate "is used entirely in the care and upkeep of
the property, interest on loans, insurance, etc." By a sub-
sequent communication you have been advised that the
real estate consists of a brick block divided into a number of
rooms, some of which are leased at a monthly rental to other
fraternal organizations and others are rented at times
when not in use.
G. L., c. 59, § 5, cl. 5th, as amended by St. 1921, c. 474,
and by St. 1922, c. 222, is as follows: —
The real and personal estate belonging to or held in trust for the bene-
fit of incorporated organizations of veterans of any war in which the
United States ha»s been engaged, to the extent of one hundred thousar^d
dollars, if actually used and occupied by such association, and if the net
income from said property is used for charitable purposes; but it shall
not be exempt for any year in which such association or the trustees hold-
ing for the benefit of such association wilfully omit to bring in to the
assessors the list and statement required by section twenty-nine.
Clause 5th is an offshoot from the provisions appearing
in G. L., c. 59, §5, cl. 3rd, which, omitting the exceptions,
is as follows : —
Personal property of literary, benevolent, charitable and scientific in-
stitutions and of temperance societies incorporated in the commonwealth,
the real estate owned and occupied by them or their officers for the pur-
poses for which they are incorporated, and real estate purchased by them
with the purpose of removal thereto, until such removal, but not for more
than two years after such purchase, except as follows: . . .
In the Public Statutes the provisions corresponding to the
above-quoted portion of clause 3rd (P. S., c. 11, § 5, cl. 3rd)
were as follows : —
The personal property of literary, benevolent, charitable, and scientific
institutions incorporated within this commonwealth, and the real estate
belonging to such institutions, occupied by them or their officers for the
purposes for which they were incorporated; but such real estate, when
178 OPINIONS OF THE ATTORNEY-GENERAL.
purchased by such a corporation with a view to removal thereto, shall
not, prior to such removal, be exempt for a longer period than two years:
This clause was amended and a provision exempting
personal property and real estate of Grand Army and
veteran associations was first made by St. 1889, c. 465.
Section 1 of that statute is as follows : —
The personal property of literary, benevolent, charitable and scientific
institutions and temperance societies incorporated within this Common-
wealth, and the real estate belonging to such institutions occupied by
them or their officers for the purposes for which they were incorporated;
but such real estate when purchased by such a corporation with a view
to removal thereto, shall not, prior to such removal, be exempt for a
longer period than two years; but none of the real or personal estate of
such corporations organized under general laws shall be exempt when
any portion of the income or profits of the business of such corporations
is divided among their members or stockholders or used or appropriated
for other than literary, educational, benevolent, charitable, scientific or
religious purposes. The personal property and real estate belonging to
grand army and veteran associations incorporated within this Common-
wealth for the purpose of owning property for the use and occupation by
posts of the grand army of the republic shall, to the extent of twenty
thousand dollars, if the same shall be in actual use and occupation by
such associations, be deemed to be the property of charitable institutions,
and exempt from taxation, provided the net income from said property
is used for charitable purposes in aid of needy soldiers of the war of the
rebellion, and their dependents.
The last sentence, exempting from taxation under the
circumstances stated personal property and real estate
belonging to Grand Army and veteran associations, appears
as a reenactment in R. L., c. 12, § 5, cl. 5th. That pro-
vision has reached its present form by successive amend-
ments. So far as I have knowledge, G. L., c. 59, § 5, cl. 5th,
has not been construed either by the court or by the Attorney
General. Cases involving the construction of the provisions
of clause 3rd have, however, frequently been before the court,
and the language of the two clauses is sufficiently similar
JAY R. BENTON, ATTORNEY-GENERAL. 179
SO that those decisions have a considerable bearing on the
question concerning which you have asked my opinion.
The particular phrases of the two clauses which, for
present purposes, should be set opposite each other and
compared are these : —
Clause Srd. "The real estate owned and occupied by them or their
officers for the purposes for which they are incorporated."
Clause 5th. "The real . . . estate belonging to incorporated organi-
zations of veterans . . . , if actually used and occupied by such associa-
tion, and if the net income from said property is used for charitable
purposes."
The cases of which I have spoken emphasize two con-
ditions which must be met in order that real estate may be
exempt under clause Srd. The first is that it must be
owned and occupied by the institution, and the second is
that it must be occupied for the purpose for which the insti-
tution is incorporated. Cases applying to the latter con-
dition are the following: Chapel of the Good Shepherd v.
Boston, 120 Mass. 212; Mount Hermon Boys' School v. Gill,
145 Mass. 139; Salem Lyceum v. Salem, 154 Mass. 15;
Phillips Academy v. Andover, 175 Mass. 118; Emerson v.
Trustees of Milton Academy, 185 Mass. 414. This condition,
obviously, has no application to clause 5th.
But other cases under clause Srd have dealt with the
question — what is a sufficient occupation by an insti-
tution to exempt its real estate; and these cases, it seems
to me, are directly applicable to the question before me.
In Charleshank Homes v. Boston, 218 Mass. 14, the plaintiff
was a charitable corporation owning a large model apart-
ment house containing apartments which it leased to tenants
for small rents. The court held that the tenants were
strictly tenants, who were themselves the occupants of their
apartments, that "there must be an actual occupation by
the corporation or its officers before the purpose of that
occupation can be considered," and that the real estate upon
which the tax was imposed was not exempted from taxation,
180 OPINIONS OF THE ATTORNEY-GENERAL.
because it was not occupied by the plaintiff corporation
but was occupied by its tenants. This case was followed
and applied in Bahcock v. Mores Home for Infirm Hebrews,
225 Mass. 418.
In my opinion, these cases are decisive of the present
question. Indeed, the language of clause 5th in that
respect is somewhat stronger, because the real estate to be
exempt must be "actually used and occupied by such associa-
tion." It is not sufficient that the net income from the
property is used for charitable purposes. That is a second
condition imposed by clause 5th to be considered after the
first has been met. Cf. Chapel of the Good Shepherd v. Boston,
120 Mass. 212; Salem Lyceum v. Salem, 154 Mass. 15. But
an occasional letting of a hall or other part of a building
which is occupied by an institution or association is not in-
consistent with an actual occupancy of that part of the
building by the institution or association, so long as it
remains in control of the premises. Salem Lyceum v. Salem,
154 Mass. 15, 17; Emerson v. Trustees of Milton Academy,
185 Mass. 414.
For the purpose of taxation those portions of the building
which are let to tenants can be separated from the remain-
ing parts occupied by the corporation, and separately valued
and taxed. Cambridge v. County Commissioners, 114 Mass.
337.
I must advise you, therefore, that, in so far as any of the
rooms in the building in question are let to other organ-
izations as tenants, the property so occupied by them is not
exempt, but that otherwise the property is exempt from
taxation.
jay r. benton, attorney-general. 181
Constitutional Law — Drainage Law.
The power of the State to provide for the improvement of low lands and swamps
and the assessment of the expense on the owners, either in the exercise of the
police power, where the benefits conferred are merely private, or in the exer-
cise of the power of eminent domain and the taxing power, where a public
purpose is served, has long been recognized.
You have transmitted to me for examination and report G°verno
a bill, entitled "An Act concerning the improvement of low Miy^li.
lands and swamps," which amends G. L., c. 252, as amended
by St. 1922, c. 349, by striking out sections 1 to 14A, in-
clusive, and inserting in place thereof sixteen new sections.
The general purpose appears to be to make adequate pro-
vision for the financing of improvements of wet lands by
the formation of reclamation districts, and by giving to
such districts authority either to request the county com-
missioners to pay, in the first instance, the expense involved
in making proposed improvements, by issues of county
bonds or notes, or to finance such expense by assessments
upon the members of the districts or the issuing of district
notes or bonds.
The power of the State to make provision for the improve-
ment of meadows and low lands and the assessment of the
expense on the owners, either in the exercise of the police
power, where the benefits conferred are merely private,
or in the exercise of the power of eminent domain and the
taxing power, where a public purpose is served, has long
been recognized. Talbot v. Hudson, 16 Gray, 417; Lowell
V. Boston, 111 Mass. 454, 464-471 ; Turner v. Nye, 154 Mass.
579; Wurts v. Hoagland, 114 U. S. 606; III Op. Atty. Gen.
538. See Mass, Const. Amend. XLIX. In my opinion,
the bill, if enacted into law, would be constitutional.
May 24.
182 opinions of the attorney-general.
Department of Agriculture — Oleomargarine —
Inspection — Peaceable Entry — Search War-
rant.
Employees of the Department of Agriculture may, for the purpose of inspection,
peaceably enter dwelling houses actually used in the manufacture, transpor-
tation or sale of oleomargarine.
Force may probably not be used to gain such entry.
When peaceable entry has been made, reasonable force may probably be used to
make inspection.
A search warrant may not be issued to search for oleomargarine.
m?ssionS°of' ^^^ havc Tequested my opinion upon certain questions
^^1923'*"'^' relative to the powers of employees of your department,
under the provisions of G. L., c. 128, § 14, which provides,
in part, as follows : —
The department and its employees shall have access to each place used
in the manufacture, transportation or sale of dairy products or imitations
thereof, and to each vessel and can be used in such manufacture, trans-
portation and sale, . . .
Under these provisions the department and its employees
have access only to places actually used in the manufacture,
transportation or sale of dairy products or imitations thereof.
In my opinion, if a dwelling house is used for any of the
purposes enumerated in the statute, the department and
its employees have a right to enter for the purpose of in-
spection. Dunn V. Lowe, 203 Mass. 516, 517; G. L., c. 94,
§ 56. This applies, however, only to dwellings actually
used for such purposes, and does not apply to dwellings
merely suspected of being so used. The cases sustaining
the right of officers authorized by statute to make entry for
the purpose of inspection refer to peaceable entry. They
do not hold that entry may be made by force against the
will of the owner or occupant. Whether such entry would
be lawful is left in doubt. (See VI Op. Atty. Gen. 288.)
If, however, peaceable entry in the place used for the man-
ufacture, transportation or sale of oleomargarine has been
obtained, the court seems to intimate that an inspection
JAY R. BENTON, ATTORNEY-GENERAL. 183
can be made even against the will of the owner. Com-
monivealth v. Smith, 141 Mass. 135, 139. This question,
however, is not free from doubt.
By statute, search warrants may be issued to search for
certain property. There is no provision authorizing the
issuing of a search warrant to search for oleomargarine.
Answering your questions specifically, I am of the opinion
that —
(1) Employees of your department may enter dwelling
houses used in the manufacture, transportation or sale of
oleomargarine for the purpose of inspection, but may not
enter dwellings which are merely suspected of being, but
are not actually, so used.
(2) Employees may probably not use force to gain entry
to a dwelling so used against the will of the owner or oc-
cupant.
(3) Employees who gain peaceable entry to a dwelling
so used may probably use reasonable force for the purpose
of making an inspection when they are within the premises
used for the manufacture, transportation or sale of oleo-
margarine.
(4) Under existing statutes, a search warrant may not
be issued to search for oleomargarine.
Constitutional Law — Bridge over Highway —
Ownership of Fee in Public Way.
5 It is within the constitutional power of the Legislature to enact a law conferring
• upon a city or town within this Commonwealth the power to grant permits
or privileges to private individuaL? to erect structures which will bridge the
public streets connecting premises owned on both sides of the street.
The Legislature has the power to authorize encroachments upon a public street
if they deem it proper so to do, whether the municipality or the person seek-
ing the permit or consenting thereto owns the fee of the street.
You have transmitted to me for examination and report qI^^^j^^
House Bill No. 1491, entitled "An Act authorizing Lever ^^Ifl^^
Brothers Company to maintain a bridge over Burleigh
184 OPINIONS OF THE ATTORNEY-GENERAL.
Street in the city of Cambridge." The proposed act is
as follows : —
Section 1. Upon petition, after seven days' notice inserted in at
least one newspaper published in the city of Cambridge and a public
hearing thereon, the city council of said city may, by a two-thirds vote,
with the approval of the mayor, issue a permit to Lever Brothers Com-
pany of Cambridge, its successors and assigns, to build and maintain a
bridge over Burleigh street in said city, for the purpose of connecting the
buildings owned and occupied by said company on said Burleigh street.
Said permit shall be granted upon such conditions and subject to such
restrictions as the city council may prescribe. Any permit so issued may
be revoked by vote of said city council, with the approval of the mayor.
Section 2. Any bridge built under a permit granted as aforesaid
shall be constructed and maintained at a height not less than twenty-seven
feet, six inches above the grade line of said street, and shall not be more
than twenty feet in width, and no part of said bridge or its supports shall
rest on the surface of the street.
Section 3. If a person sustains bodily injury or damage in his prop-
erty bj^ reason of the construction or maintenance of said bridge, he may
recover damages therefor in an action of tort brought in the superior
court against said Lever Brothers Company, or its successors or assigns,
within one year after the date of such injury or damage; provided, that
such notice of the time, place and cause of the said injury or damage be
given to said Lever Brothers Company, or its successors or assigns, by,
or on behalf of, the persons sustaining the same as is, under the provisions
of chapter eighty-four of the General Laws, valid and sufficient in cases
of injury or damage sustained by reason of a defect or a want of repair
in or upon a way, if such defect or want of repair is caused by or consists
in part of snow or ice, or both. The remedy herein provided shall not
be exclusive, but shall be in addition to any other remedy provided by
law.
Section 4. This act shall take effect upon its passage.
The question is presented whether such an act is within
the constitutional power of the Legislature.
In 1911 the House of Representatives, having under
consideration certain bills to authorize the construction of
bridges over streets in the city of Boston, requested the
opinion of the justices of the Supreme Judicial Court on
several questions, of which one was whether it was "within
the constitutional power of the Legislature to enact a law
JAY R. BENTON, ATTORNEY-GENERAL. 185
conferring upon a city or town within this Commonwealth
the power to grant permits or privileges to private individuals
to erect structures which will bridge the pubUc streets con-
necting premises owned on both sides of the street." Opin-
ion of the Justices, 208 Mass. 603, 604. To this question
the justices answ^ered (p. 606) : "Yes, if the private individ-
uals own all the land upon or over which the structures are
to be erected."
In the course of their opinion the justices gave the fol-
lowing reasons for their answer (pp. 605, 606) : —
The Legislature represents the public, and at any time it may enlarge
or limit public rights thus acquired, having due regard to private rights
of property secured by the Constitution to all the people. New England
Telephone & Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 400.
So far as the rights of the public in the street or way are concerned, the
Legislature can do anything referred to in any of the questions, if the
proposed legislation seems reasonable and proper.
So far as the abutters are concerned, the Legislature, without their
consent can do or authorize nothing that takes away or impairs any
valuable right in their property, unless the taking is for a public use,
with compensation for that which is taken.
As against an adjoining landowner, one has no right to have the ad-
jacent premises remain open for the admission of light and air. In the
cases referred to in the first three questions, we assume that the owners of
abutting land, upon or over which the structure would be erected, would
desire the erection and would consent to it. It would, therefore, be made
in their right, as well as with authority from the Legislature to make an
encroachment upon the previously existing public right. The existence
of this private right of the owner of the fee of the land over which the
', structure would be erected would preclude the owners of adjacent lands
: from having damage for an obstruction of light and air, possibly affecting
I their property abutting on other adjacent parts of the street.
The reasons thus stated involve three fundamental prop-
ositions: First, that so far as the rights of the pubhc are
concerned the Legislature can authorize the granting of a
permit to private individuals to erect a bridge across a
public street, if it seems to them reasonable and proper to
do so (see Union Inst, for Savings v. Boston, 224 Mass. 286) ;
186 OPINIONS OF THE ATTORNEY-GENERAL.
second, that the Legislature cannot authorize the taking
of private rights in property unless the taking is for a public
use, with adequate provision for compensation; and third,
that no taking of any such right is made by the erection of
a bridge across a public street except as against owners of
the land upon or over which the structure is erected, and,
that interference with light, air and prospect does not consti-
tute the taking of an easement in adjoining land for which
compensation must be made. See Peabody v. Boston &
Providence R.R. Corpn., 181 Mass. 76; McKeon v. New
England R.R. Co., 199 Mass. 292, 295, 296.
Upon receipt of the answer of the justices the House of
Representatives propounded further questions to them.
Opinion of the Justices, 208 Mass. 625. Two of their '
questions were as follows (p. 627) : — j
6. Would the provisions of said House Bill No. 817 be constitutional I
and would the provisions of the bill which forms the subject of the last<
question be constitutional if these bills were amended by striking outil
section three of the former bill and section four of the latter bill and sub- •
stituting in the place of each of said sections the following section: "Any <
person owning property, or doing business in property abutting on Avom
Street, whose property or business is damaged either through interferenc
with light and air or otherwise by the construction or maintenance of
bridge constructed in accordance with the provisions of section one
this act, may have damages therefor determined by a jury upon petitio^
to the Superior Court filed against the grantees of said permit within or
year after the permit for the erection of said bridge is approved by thf
mayor, as provided in section one of this act."
7. If at any time after the enactment of slich a bill and the issue
such permit and the construction or beginning of construction of sue
bridge under said permit any person using said street and passing und^
said bridge shall suffer any injury either to his person or to his propert
on account of the construction or maintenance of said bridge, as bj'^ t\
falling of material used in the construction of said bridge or by the fallir
of snow or ice from said bridge, will the city of Boston be liable for sai|
injury?
To these questions the justices answered, in part, as follow
(p. 630):—
JAY R. BENTON, ATTORNEY-GENERAL. 187
The law covering the matters to which these questions relate was very
fully stated in an Opinion of the Justices communicated to the House of
Representatives on April 17, 1911, ante, 603, which appears by 3'our order
to be before the Honorable Senate.
It is elementary doctrine that such an amendment as is proposed, pro-
viding that the damages to persons injured in their property shall be paid
by the grantees of the permit, who are private parties, would not secure
compensation to such persons in the manner required by tlie Constitu-
tion and as to them, in reference to damages to which they might be en-
titled under the Constitution, would render the statute invalid. It is
equally elementary law that cities and towns are not liable in damages
to persons for injuries received from unsafe conditions, while travelling
on a higliway, unless there is a statute imposing a liability for such con-
ditions.
In fact, the substituted section proposed in the sixth
question was open not only to the objection pointed out
by the justices, but also to the objection that since the
buildings, on opposite sides of the street, to be connected
by the proposed bridge were owned by the petitioners, there
could be no person entitled to damages by reason of any
taking, as the justices showed in their former opinion.
A bill containing similar provisions was held by my
predecessor to be open to the objections stated in the latter
opinion. VI Op. Atty. Gen. 52. Section 3 of that bill
provided : —
Any person whose property is damaged by reason of the construction
or maintenance of the bridge as aforesaid may have his damages deter-
mined by a jury, upon petition filed in the superior court within one year
after the approval of the permit l)y the mayor as above provided, and
the damages when so determined shall be paid by the said George L.
Brownell.
The form of the bill was afterwards amended, and as so
amended was approved by Your Excellency. St. 1921, c.
330. Section 3 of the act as passed is in form precisely
similar to section 3 of the bill before me. It does not pur-
port to provide for recovery of compensation by any one for
a taking in the exercise of the power of eminent domain.
188 OPINIONS OF THE ATTORNEY-GENERAL.
but merely to provide for the recovery of damages in an
action of tort against the petitioner, occasioned to any
person who suffers an injury to a legal right by reason of the
construction or maintenance of the bridge.
In Opinion of the Justices, 208 Mass. 603, 606, their
affirmative answer was on the hypothesis that the private
individuals who were the petitioners owned all the land
upon or over which the structures were to be erected. The
justices assumed, apparently, that they owned the fee in the
street. So in the case to which St. 1921, c. 330, relates, the
petitioner was authorized to build and maintain a bridge
over such portions only of the street as were owned by him
or by the corporation owning the land on the opposite side
of the street, to whose written consent the permit was
subject. In the proposed act it does not appear that the
petitioner owns the fee of the street. In my opinion, how-
ever, it is not necessary that it should. In accordance with
the general principle stated by the justices in the first
opinion referred to, the Legislature has power to authorize
encroachments upon a public street if it deems it proper
so to do, whether the municipality or the person seeking the
permit or consenting thereto owns the fee of the street.
St. 1921, c. 331, authorizes a permit for the erection of a
bridge across a street for the purpose of connecting buildings
owned and occupied by the corporation on opposite sides of
the street, without any reference to the ownership of the
fee in the street.
I advise you, therefore, that, in my opinion, there is no
constitutional defect in the proposed act.
I
jay r. benton, attorney-general. 189
Constitutional Law — Legislative Power as to
Courts — District Judges sitting in the Superior
Court.
It is within the constitutional power of the Legislature to modify, enlarge, diminish
or transfer the jurisdiction of all courts subordinate to the Supreme Judicial
Court.
An act providing that district judges shall sit at the trial of certain criminal cases
in the Superior Court, when designated by the chief justice thereof, is consti-
tutional.
You request me to consider House Bill No. 1466, entitled Q°^^grno
"An Act to provide for the more prompt disposition of May^ls.
criminal cases in the Superior Court."
Mass. Const., c. I, § I, art. Ill, provides, in part: —
The general court shall forever have full power and authority to erect
and constitute judicatories and courts of record, or other courts, to be
held in the name of the commonwealth, for the hearing, trying, and de-
termining of all manner of crimes, offences, pleas, processes, plaints,
actions, matters, causes, and things, whatsoever, arising or happening
within the commonwealth, . . . whether the same be criminal or civil,
Article IV of that section provides, in part : —
. . . full power and authority are hereby given and granted to the
said general court, ... to set forth the several duties, powers, and
Hmits, of the several civil and military officers of this commonwealth,
... so as the same be not repugnant or contrary to this constitution;
In Dearborn v. Avies, 8 Gray, 1, 14, the court said: —
The power to erect courts and judicatories, coupled with an authority
to define and limit the powers and duties of all civil officers, gives power
to the legislature to fix and limit the jurisdiction of all such courts and
judicatories. . . .
Under this power to erect judicatories, we think it has been the prac-
tice of the legislature, from the adoption of the Constitution, to erect and
establish new judicatories, other than the supreme judicial court, to
transfer jurisdiction from one court to another, in part or in whole, and
to enlarge, restrain and regulate the jurisdiction of all courts.
190 OPINIONS OF THE ATTORNEY-GENBKAL.
In Russell v. Howe, 12 Gray, 147, 153, the court said: —
The probate court was a judiciary under tlie Constitution, and its
jurisdiction might be modified, enlarged, diminished or transferred, in
the same manner as the jurisdiction of all other courts subordinate to the
supreme judicial court.
The proposed bill enlarges the juridiction of justices of
district courts when assigned by the chief justice of the
Superior Court. It is within the constitutional power of
the Legislature so to provide. I am therefore of the opinion
that the proposed bill, if enacted, would be constitutional.
Public Health — Licenses — Cold Storage Warehouse.
Cl. L., c. 94, § 00, providing that "no person shall maintain a oold storage or re-
frigerating warehouse without a license issued by the department of public
health," requires a separate license for each plant operated.
Whether a group of buildings may fairly be considered to constitute but a single
plant, and therefore to require but a single license, is a question of fact to be
decided upon the concrete circumstances of each case.
m?ssion^r°o?' ^y opiuiou Is rcqucstcd relative to the licensing of cold
^'"'923"''''^^'' storage warehouses under the provisions of G. L., c. 94, § 66.
May£l. rpj^^ ^^^^ ^£ ^j^.^ ^^^ -^ ^^ f qUoWS I
No person shall maintain a cold storage or refrigerating warehouse
without a license issued by the department of public health. Any person
desiring such a license may make written application to such depart-
ment, stating the situation of his plant. Upon receipt of the application
the said department shall cause an examination of the sanitaj-y condition
of the plant to be made, and if it is found to be in a sanitary condition and
otherwise properly equipped for the business of cold storage, said depart-
ment upon receipt of a license fee of ten dollars shall cause a license to be
issued authorizing the applicant to maintain therein a cold storage or
refrigerating warehouse for one year. If any warehouse or any part
thereof, licensed under this section, is deemed by said department to be
conducted in an unsanitary manner, it shall close such warehouse or
part thereof, until it has been put in sanitary condition, and said depart-
ment may also suspend the license if the required changes are not made
within a reasonable time. Each such licensee shall submit to the de-
partment of public health on or before the fifteenth day of each month, a
JAY R. BENTON, ATTORNEY-GENERAL. 191
report on a printed form to be provided by said department, stating the
quantities of articles of food placed in cold storage during the month pre-
ceding, and also the quantities of articles of food held on the first day of
the month in which the report is filed or such other day as the commis-
sioner of public health may from time to time fix.
The act does not provide specifically for a case where the
same person maintains more than one cold storage ware-
house. Under the statute, however, the Hcensee, in order
to secure a license, must state in his application "the situa-
tion of his plant," in order that the department may then
"cause an examination of the sanitary condition of the
plant to be made." "If any warehouse or any part thereof,
licensed under this section, is deemed by said department
to be conducted in an unsanitary manner, it shall close such
warehouse or part thereof, until it has been put in sanitary
condition, ..."
In my opinion, these provisions indicate that a separate
license is required for each plant operated. Whether a group
of buildings may fairly be considered to constitute a single
plant, and therefor to require but a single license, is a
question of fact, to be decided upon the concrete circum-
stances of each case. When all the buildings in question
are operated from a single power plant, this fact would,
in my opinion, be of importance in determining whether or
not they may properly be looked upon as a single plant. It
cannot be said, however, that the absence of this feature
necessarily and as a matter of law would require a finding
that the buildings were not fairly to be deemed a unit.
The question is one of fact in each instance.
192 opinions of the attorney-general.
Prisoners — Minimum and Maximum Sentences —
Parole.
a sentence for a minimum and maximum term is in effect a sentence for the maxi-
mum term.
A prisoner in the Reformatory for Women, under a sentence of not less tlian five
years and not more than eight years, is eligible for parole after serving three
years and eleven months.
m°s8ionCT°of' You have requested my opinion as to when a female
Correction. prisouer is eligible for parole upon the following facts: A
^^ ■ female was committed to the Reformatory for Women on
two separate commitments, one upon a sentence of not less
than five years and a day and not more than eight years, for
larceny, and the other upon a sentence of two years, for
forgery and uttering. The two sentences run concurrently.
I am of the opinion that she is not eligible for parole upon
the sentence of two years, since at the time she is serving the
longer sentence, upon which, under the present rules, she
would not be eligible for parole at any time within the two-
year period.
G. L., c. 279, § 18, provides: —
A female sentenced to the reformatorj^ for women for larceny or any
felony may be held therein for not more than five years, unless she is
sentenced for a longer term, in which case she may be held therein for
such longer term; . . .
A sentence for a minimum and maximum term is in effect
a sentence for the maximum fixed by the court. Comnion-
ivealth V. Brown, 167 Mass. 144, 146; Oliver v. Oliver, 169
Mass. 592, 593; Ex parte Spencer, 228 U. S. 652, 661;
Adams v. Russell, 229 U. S. 353, 362. In Oliver v. Oliver,
supra, where the sentence was for not less than three nor
more than six years, the court said, at page 594 : —
The sentences must be deemed to be, for the purpose contemplated
by this statute, either for the maximum or for the minimum term. They
are indeterminate, and they cannot be treated as sentences for any inter-
mediate term. In the interval between the two dates fixed is the convict
JAY R. BENTON, ATTORNEY-GENERAL. 193
under sentence to imprisonment or not? He is all the time in the custody
of the law under his sentence. He is in confinement at hard labor, unless
for good reasons a permit to be at liberty on certain terms and conditions
is given to him by the commissioners of prisons. If he obtains such a
permit, it may be revoked at any time, and if any of its terms or conditions
are broken it becomes ipso facto void. He is certainly under sentence
during the whole of the maximum term. After the expiration of the
minimum term the rigor of the sentence is mitigated by the law. If he
obtains a permit, which is not revoked, and observes its terms and con-
ditions, he is not confined at hard labor, but it seems more nearly correct
to say that his sentence to confinement at hard labor is for the maximum
term than to say that it is only for the minimum term.
G. L., c. 127, § 136, provides: —
If it appears to the board of parole that a prisoner in the reformatory
for women . . . has reformed, it may grant her a permit to be at liberty
during the remainder of the term for which she might be held therein.
Acting under this statute, the Board of Parole estabhshed
Rule 10 for prisoners in the Reformatory, which provides: —
An inmate committed to the Reformatory upon a sentence of over
five years shall have the right to make an application for a hearing on the
question of his parole one month before he shall have served one-half of
liis sentence.
I am therefore of the opinion that the prisoner's sentence
is eight years, and that under the present rule she may apply
for a hearing on the question of parole after serving three
years and eleven months.
I call your attention to G. L., c. 127, § 131, which provides
that a prisoner in the State Prison may be paroled after he
has served two-thirds of the minimum term, provided he
has served at least two and one-half years. In the instant
case, if the prisoner were a male, sentenced to the State
Prison, he would be eligible for parole in three years and four
months. Women cannot be sent to the State Prison, and
it would seem that the intent of the Legislature was to make
them subject to parole sooner than prisoners in the State
194 OPINIONS OF THE ATTORNEY-GENERAL.
Prison. Under the existing rule, however, it may frequently
happen that women must serve a proportionately longer
period of time before being eligible for parole.
Civil Service — Veteran — Service in the Army or
Navy of the United States — Discharge from
Draft.
a person is not a "veteran," within the meaning of G. L., c. 31, § 21, who was
discharged from the draft at Camp Devens, on October 12, 1917, by reason
of physical disability, such person having been inducted into the service from
the jurisdiction of the local board for No. 21, Boston, on October 1, 1917.
Discharge from the draft is not the equivalent of an honorable discharge from
service in the Army of the United States.
m?Rsk.nfr°^" You Tequest my opinion on the following question: Is a
civu^service. p^j-gon a "veterau," within the meaning of G. L., c. 31, § 21,
' ^''— " who was discharged from the draft at Camp Devens, on
October 12, 1917, by reason of physical disability, said
person having been inducted into the service from the
jurisdiction of the local board for No. 21, Boston, on October <
1, 1917?
G. L., c. 31, deals with the civil service. Section 21 thereof i
defines a "veteran" as follows: — j
The word "veteran" as used in this chapter shall mean any person who i
has served in the army, navy or marine corps of the United States ini
time of war or insurrection and has been honorably discharged from such l|
service or released from active duty therein, or who distinguished him-
self by gallant or heroic conduct while serving in the army or navy of the i
United States and has received a medal of honor from the president of'
the United States, provided that such person was a citizen of the common- '
wealth at the time of his induction into such service or has since acquired
a settlement therein; and provided further that any such person who at
the time of entering said service had declared his intention to become a
subject or citizen of the United States and withdrew such intention under
the provisions of the act of congress approved July ninth, nineteen hun-
dred and eighteen, and any person designated as a conscientious objector
upon his discharge, shall not be deemed a "veteran" within the meaning
of this chapter.
JAY R. BENTON, ATTORNEY-GENERAL. 195
The answer to your question turns upon what is meant by
"service" in the Army, Navy or Marine Corps of the United
States in time of war or insurrection, and "honorable dis-
charge" therefrom; in other words, does the phrase "honor-
ably discharged" mean an honorable discharge as that ex-
pression is commonly understood in mihtary terms, or does
it mean any discharge other than a dishonorable one?
The meaning of such expressions as "entering the service,"
"drafted into the service" or "actually mustered into the
service" has been interpreted and decided in several cases
immediately following the Civil War.
In the case of French v. Sangerville (1867), 55 Me. G9, the
court said : —
It is contended that a drafted man is actually mustered into the mili-
tary service as soon as drafted and notified of the fact. In a certain sense
he is, undoubtedly, under martial law, so far that he may be treated as a
deserter if he does not report himself to the provost marshal's office. But
is he thereby actually mustered in, within the meaning of the statute?
. . . When a drafted man reports himself, he must first be examined by
the surgeon, as to his physical fitness. If found sound and able-bodied,
he is then mustered actually into the military service. . . . Would it be
seriously contended that a drafted man who had simply reported and
been found unfit for the service, and had thereupon been released from
all claim on him under the draft, had been actually mustered into the
military service, and was therefore entitled to be paid, under this provi-
|sion of the act of ratification? . . . The legislature certainly intended
I something beyond a mere drafting into service, or they would have sim-
ply said "all drafted men." ... We are satisfied that the case before
us IS not within the clause of ratification, because the plaintiff has not
shown that he was ever "actually mustered into the military service of
the United States."
See also Mahoney v. LincolnviUe (1868), 56 Me. 450.
In Reed v. Sharon (1868), 35 Conn. 191, it was held that
3ne was not drafted into the service until he had had a
physical examination and had been accepted by the board
)f enrolhnent; and that one was not so drafted merely
because he was notified by the proper authorities that he had
)een drafted into the military service of the United States
196 OPINIONS OF THE ATTORNEY-GENERAL.
and required to appear at a specified date for examination.
See also Gregg v. Jamison (1867), 55 Pa. 468.
Under a statute authorizing a bounty to men, "drafted
into the military service of the United States and serving
therein," it was held that one was not entitled to a bounty
who was drafted in February, 1865, reported to the deputy
provost marshal, was examined and held to service, and then
furloughed, and discharged in April, 1865, at the close of
the war, without being mustered into service. See Flynn
V. Allen (1865), 26 Phila. Leg. Int. 37.
In Bickford v. Brooksville (1867), 55 Me. 89, it was held
that one was not entitled to a bounty, who, at the time he
was drafted from the town, was working in the navy yard,
reported to the provost marshal's office, where he was
examined and accepted, was furloughed, returned to the
navy yard and remained at work, and was finally discharged
because the town's quota was filled by volunteers, such
person not being a "drafted" man within the meaning of a
vote of a town awarding $350 "for each drafted man to fill
our quota."
The proposition that one is not mustered into the military
or naval service of the United States merely because he is
drafted, reports pursuant to a notice to report at a certain
rendezvous under pain of being deemed a deserter and
subject to the penalty prescribed therefor by the rules and
articles of war, is apparently well settled.
In construing the soldiers' bonus law this department has
ruled that the provisions of Gen. St. 1919, c. 283, granting
a war bonus to men honorably discharged from the service
of the United States in the World War do not apply to
drafted men who were passed by the draft board, sent to
Army camps and there discharged because physically
disqualified, or to men discharged on account of bad con-
duct or similar ground. See V Op. Atty. Gen. 405. In
said opinion the following language was used : —
JAY E. BENTON, ATTORNEY-GENERAL.
In my judgment, ... it cannot be said that the class of men to which
you refer was enUsted in or had been enrolled in or had been mustered
into the Federal service, within the meaning of this statute. These men
were never in the army of the United States to a sufficient extent to be
discharged from it. In my opinion, it cannot be said that they performed
"services ... in the army ... of the United States" of the character
intended by this statute to be recognized. Accordingly, I must advise
you that men of the class to which you refer are not entitled to the bene-
fits of the statute.
So also this department has ruled that, in view of the
express provision of Gen. St. 1919, c. 290, § 9, which in-
corporates into said section 9 the limitations prescribed
by section 3 of said act, a man enrolled in the United States
naval reserve force, who is called for active duty but who
is almost immediately discharged for a disability not in-
curred in said service, is not entitled to military aid in the
first, second, third or fourth classes defined by said section
9. See V Op. Atty. Gen. 471.
A former Attorney General has also ruled that the ex-
emption from all poll taxes granted by Gen. St. 1919, c. 9,
does not include persons who were summoned in the draft
and reported for duty but were discharged before they were
mustered into the Federal service. See V Op. Atty. Gen.
601.
A similar conclusion was reached by the Supreme Court
of Rhode Island on substantially the same set of facts as
those involved in the case under consideration. In the case
of Gilbert John Bannister v. Soldiers' Bonus Board, 43 R. I.
346, decided February 11, 1921, the court held that a draftee
who, in obedience to orders from the War Department,
presented himself at the designated place for induction into
the service, is not, where he is sent to a military camp and
rejected from the draft ten days later because of physical
disabihty, within the operation of a statute providing a
bonus for each enlisted man "who is mustered into the
Federal service and reports for active duty." In that case
the court used the following language : — -
197
198 OPINIONS OF THE ATTORNEY-GENERAL.
We assume that the petitioner was passed by the local draft board,
and, from the above order directing him to present himself at the State
House, it would appear that he was inducted into the military service,
but it was the intention of the Selective Service Law (U. S. Comp. Stat.
§§ 2044a-2044k, 9 Fed. Stat. Anno., 2d ed., pp. 1136-1163) that each
person inducted into the military service should be finally examined and
accepted or discharged upon his arrival at the mobihzation camp. Sec-
tion 166 of the Selective Service Regulations prescribed by the President
under the authority vested in him by the terms of the Selective Service
Law provides that all men inducted into the service shall at the mobiliza-
tion camp be finally accepted or rejected within fifteen days after the
date of the registrant's induction into service. The petitioner was "in-
ducted" into the military service, but he was not "mustered" into the
service.
To entitle the petitioner to a bonus from the state he must have been
recognized by the War or Navy Department as an enlisted man; he must
have been "mustered into the Federal service" and he must have reported
for active duty. The petitioner never had an opportunity to report for
active duty. His experience with the draft never brought him to the
stage where it was possible for the Army or Navy Department to order
him to attack the enemy or endure other perils of war. He was not
called for active duty. His name was selected by lot as were the names
of all other persons who were called by the draft, and he, like the others,
was ordered to report to a camp for final examination to determine his
fitness for active duty. Had the petitioner successfully passed the physi-
cal examination, he probably would have been enrolled as a member of
the Army and assigned to active duty in a training camp.
When the petitioner was drafted, or, in other words, inducted into the
service, he became subject to military law and regulations. Section 6
of the Act of May 18, 1917, entitled "An Act to authorize the President
to increase temporarily the military establishment of the United States,"
provides that any person who fails or neglects to perform any duty
required of him in the execution of said act shall "if subject to military
law ... be tried by court-martial and suffer such punishment as a court-
martial may du'ect." It was the intention of Congress, as expressed in
the two acts last above cited, that a person should be subject to the mili-
tary law during the time intervening between his induction into the serv-
ice and his final acceptance or rejection. The purpose evidently was
to prevent the government, in the emergency, from being hampered by
the delays incident to procedure in the civil courts. A person, however,
may be subject to military law and regulations without being a member
JAY E. BENTON, ATTORNEY-GENERAL. 199
of the Army, and it does not follow that a man must be a member of the
Army to be the subject of court-martial.
I am consequently of the opinion that the "discharge
from draft" which was received by the person referred
to in your inquiry is not the equivalent of an honorable
discharge from service in the Army of the United States,
and that the person is accordingly not a "veteran," within
the meaning of G. L., c. 31, § 21.
of Parole.
1923
June 12.
Prisoners — Application for Parole — Hearings.
A prisoner alone may apply for a permit to be at liberty.
Whether the Board of Parole will hear persons other than the prisoner, in his
behalf, is a matter within its own discretion.
You have requested my opinion as to whether, under the JfVaroi^'"*'^''
provisions of G. L., c. 127, §§ 131 and 132, any person other
than the prisoner may make application for a permit to be
at liberty, and whether any person other than the prisoner
may appear before the Board of Parole to speak in his
behalf,
G. L., c. 127, § 131, confers power upon the Board, under
certain circumstances, to grant a special permit to be at
liberty to a prisoner confined in the State Prison.
Section 132 provides: —
Any prisoner eligible for a release in accordance with the preceding
section may apply for a permit to be at liberty as therein provided. The
application shall be transmitted to the board of parole by the warden
ot the state prison or the superintendent of the Massachusetts reforma-
tory, who shall send with it a report of the prisoner's conduct and in-
dustry, a statement concerning the prisoner's health, and any other in-
formation respecting the case which the warden or superintendent can
supply; and the board shall not entertain any other form of application or
petitimi for the release of a prisoner under the preceding section.
I am of the opinion that the prisoner alone may apply
for a permit to be at liberty, and that an application from
200 OPINIONS OF THE ATTOKNEY-GENERAL.
any other source may not be entertained by the Board.
There is nothing in the statute which prohibits the Board
from permitting persons other than the prisoner to appear
before it and speak in his behalf, after his apphcation for
a permit to be at Hberty has been transmitted to the Board,
in accordance with section 132. Whether the Board will
hear such persons is within its own discretion.
June 23.
Savings Banks — Savings Departments of Trust Com-
panies — Authorized Investments — Construction ,
of Indenture with Relation to Bond Issues. |
Certain railroad bonds, the authorized issue of which, by the terms of the indenture, ll
can never exceed, with all outstanding debts, three times the value of the
capital stock, are a legal investment for savings banks and savings depart-
ments of trust companies.
To the Com- You have requested my opinion as to whether the Louis-
niissioner ot ~l ^ sr
^T923 vill® ^ Nashville Railroad Company first and refunding
mortgage bonds, dated Aug. 1, 1921, are a legal investment
for the saving banks and savings departments of trust
companies of this Commonwealth, in view, more particu-
larly, of the fact that an indenture, dated Nov. 21, 1922,
supplemental to the said first and refunding mortgage, has
been made by the Louisville & Nashville Railroad Company
and the trustee named in the original mortgage.
For the purposes of your question, the savings departments
of trust companies stand in the same position as savings
banks, as it is provided by G. L., c. 172, § 61, that all invest-
ments of the savings departments of trust companies shall
be made in accordance with the law governing the invest-
ment of deposits in savings banks.
Prior to 1908 all the railroads whose bonds were then
authorized for investment of the character considered here
were mentioned specifically in the statutes, with the ex-
ception of the general laws for the authorization of bond;-
of railroads incorporated in this State and in New England.
A committee, consisting of the Bank Commissioner, th(
i
JAY R. BENTON, ATTORNEY-GENERAL. 201
Treasurer and Receiver General and the Commissioner
of Corporations, made a report, with suggestions of changes
in the General Laws of this State relating to savings banks.
They completely redrafted the paragraph relating to rail-
road bonds in three divisions, all of which were entirely
general in their terms, viz.: (1) Massachusetts railroads;
(2) New England railroads; (3) other railroads. Referring
to the third division, the committee said: —
In providing for the admission of the bonds of railroads operating in
any of the United States we have felt it necessary to make much stricter
requirements than in the case of railroads in New England, where rail-
road conditions are more established. Severe tests have, therefore, been
provided for both the corporation and the bonds themselves.
The statutory provisions as enacted by the 1908 Legis-
lature, based upon the aforesaid report, appear practically
verbatim in the General Laws in force at this time.
G. L., c. 168, § 54, subdivision 3rd, ig) (3), authorizes the
investment by savings banks in refunding mortgage bonds
complying with certain conditions. Said section 54, sub-
division 3rd, (e) (5), provides as follows: —
No bonds shall be made a legal investment bj' subdivision ig) in case
the mortgage securing the same shall authorize a total issue of bonds
which, together with all outstanding 'prior debts of the issuing or assuming
corporation, including all bonds not issued that may legally be issued
under any of its prior mortgages or of its assumed prior mortgages, after
deducting therefrom, in case of a refunding mortgage, the bonds resei'ved
under the provisions of said mortgage to retire prior lien debts at maturity,
I shall exceed three times the outstanding capital stock of said corporation
at the date of such investment.
Section 1 of Article One of the Louisville & Nashville
first and refunding mortgage provides as follows: —
The authorized issue of bonds under this indenture is limited so that
the amount thereof at any one time outstanding, together with all other
then outstanding prior debt, as hereinajter defined, of the Railroad Company,
after deducting therefrom the amount of all bonds reserved under the
202 OPINIONS OF THE ATTORNEY-GENERAL.
provisions of this indenture to retire prior debt at or before maturity,
shall never exceed three times the par value of the then outstanding fully
paid capital stock of the Railroad Company or of a successor corporation.
The second paragraph following defines "prior debt" as
follows : — •
In determining at any time and from time to time the limit of the
authorized issue of bonds hereunder, the prior debt so to be added is
that which at the time may remain unpaid on the principal of the bonds
specified in Section 3 of Article Three of this indenture, and of the bonds
which hereafter shall be included in prior debt under Sections 4 and 5 of
said Article Three (but not including any of either class of said bonds
deposited with and held by the Trustee as provided in Section 6 of said
Article Three) and the "reserved bonds" to be deducted are the bonds,
issuable under this indenture, which at that time are reserved for the
purpose of refunding prior debt as provided in said Article Three. The
term "prior debt," wherever used in this indenture, means the aggregate
bonded indebtedness ascertained and determined in accordance with this
paragraph of this Section 1 of Article One of this indenture.
The answer to your inquiry rests upon the interpretation
of the words ''outstanding prior debts" as found in the
statute [G. L., c. 168, § 54, subdivision 3rd, (e) (5) and (6)].
Are these words to be construed to mean all pre-existing
debts or debts prior in time, or do they mean prior lien debts;
in other words, debts secured by a prior lien on the property
covered?
The bonds specified in Section 3 of Article Three of the
Louisville & Nashville first and refunding mortgage are
bonds for the retirement of which bonds under the mortgage
are reserved, amounting to $176,260,500, being all, with
the exception of one, underlying mortgage bonds secured
by prior lien on the property covered by the refunding
mortgage.
The present outstanding capital stock of the Louisville
& Nashville Railroad being $72,000,000, the authorized
issue under the mortgage, under the interpretation that the
words "prior debts" mean "prior lien debts," following the
JAY R. BENTON, ATTORNEY-GENERAL. 203
method described in subdivision (e) (5) of the Massachusetts
statute, would be: Authorized issue X, plus all outstanding
prior debts ($176,260,500), minus the bonds reserved to
retire prior lien debts ($176,260,500), equals three times
the capital stock, or $216,000,000. In other words, the
total amount of bonds that may be issued under the mortgage
is $216,000,000. However, it is to be noted that in ad-
dition to the $176,260,500 underlying bonds for which bonds
are reserved under the mortgage in question, the Louisville
& Nashville Railroad has outstanding the following issues
of bonds:
$3,500,000 Southeast & St. Louis Division first 6s, 1971.
3,000,000 Southeast & St. Louis Division second 3s, 1980.
These bonds are direct obligations of the Louisville &
Nashville Railroad secured by mortgage on the property
of the Southeast & St. Louis Railway, which is a separate
corporation. As the property is not owned by the Louis-
ville & Nashville Railroad, the mortgage in question does
not cover the property, and therefore the railroad is not
obliged to reserve bonds under the mortgage for their retire-
ment. But if the words ''prior debts," as found in our
statute, are to be construed as meaning pre-existing debts
or debts prior in time, these outstanding bonds would have
to be considered in computing the authorized issue of the
mortgage. Construing the words to mean pre-existing
debts, the authorized issue would be as follows : Authorized
issue X, plus all outstanding prior debts ($176,260,500 plus
$3,500,000 Southeast & St. Louis Division first 6s, plus
$3,000,000 Southeast & St. Louis Division second 3s),
minus bonds reserved to retire prior lien debts at maturity
($176,260,500), equals three times the capital stock, or
$216,000,000. This amount is $209,500,000, as foUows: —
204 OPINIONS OF THE ATTORNEY-GENERAL.
Authorized issue X $209,500,000
Plus prior debts 182,760,500
$392,260,500
Minus amount reserved to retire prior
lien debts 176,260,500
$216,000,000
In my opinion, the Legislature intended that there should
be a fixed relation of the total debts of a railroad corporation
to its capital stock, and not merely the prior lien debts to the
bonds in question; that the words "outstanding prior debts"
mean all pre-existing debts of the railroad corporation;
that, in the given case, this interpretation requires that the
outstanding issue of the Southeast & St. Louis Division
railroad bonds, totaling $6,500,000, are to be included in
the debts in computing the amount of bonds authorized
by the terms of the mortgage. Following this interpretation,
the Louisville & Nashville Railroad Company mortgage
authorizes $6,500,000 of bonds in excess of the hmit set
down by subdivision (e) (5) and (6) .
In view of the foregoing considerations, I am of the opinion
that the bonds in question were not legal investments for
the savings banks nor for the savings departments of trust
companies of this Commonwealth under the terms of the
first and refunding mortgage as orginally drawn. However,
the indenture made on Nov. 1, 1922, already referred to,
completely changes the situation. In this supplemental
indenture an attempt has been made by the Louisville <fe
Nashville Railroad to cure the defect in the position of its
bonds by modifying the terms of the first mortgage so that
the words "prior debts," used in said mortgage, shall be
interpreted in their natural significance as "antecedent
debts," and not as defined in section 1 of article one (p. 58)
of the first mortgage itself, so as to mean only debts "superior" '
to others because secured by a lien on the property of the I
JAY R. BENTON, ATTORNEY-GENERAL. 205
railroad, and in this attempt the railroad appears to have
been successful.
The supplemental indenture appears to have been prop-
erly issued, for, under the provisions of article eleven of the
first mortgage, the railroad company, when authorized by
its board of directors and the trustee under such mortgage,
had the authority to enter into a supplemental indenture
which shall thereafter form part of the original indenture
and which may deal with almost any portion of the indenture
itself.
(a) To convey, transfer and assign to the Trustee and to subject to
the lien of this indenture, with the same force and effect as though in-
eluded in the granting clause hereof, additional railroads or leases thereof,
bonds, shares of capital stock, equipment and any other property then
owned by the Railroad Company, acquired by it through consolidation
or merger or by purchase, or otherwise. The prior debt secured by mort-
gage to which any lines of railroad so conveyed shall be subject, shall be
specified and described and the amount thereof stated in such supplemen-
tal indenture; and the prior debt so specified and described shall there-
upon and thereafter be deemed and taken to be included in Section 4
of Article Three hereof.
(b) To specify and state the bonded indebtedness, and the amount
thereof, of any company which hereafter shall be consolidated with or
merged into, or whose railroad property hereafter shall be acquired by,
the Railroad Company, although such bonded indebtedness may not be
secured by mortgage, which bonded indebtedness is to be regarded as
forming a part of the prior debt of the Railroad Company, and to retire
which, at or before maturity, bonds are to be reserved as provided in
Section 5 of Article Three hereof.
(c) To evidence the succession of another corporation to the Railroad
Company, or successive successions, and the assumption by a successor
corporation of the covenants and obligations of the Railroad Company
under this indenture.
(d) To make provision for the appointment of a co-trustee as herein-
after provided for in Section 6 of Article Twelve of this indenture.
(e) To make such provision as may be necessary or desirable with
respect to any series of bonds, if any, issued under this indenture, con-
vertible into shares of the capital stock of the Railroad Company.
(/) To provide for the creation and maintenance of a sinking fund for
the redemption before maturity, or the payment, of all or any part of
any series of bonds issued hereunder, and to constitute a default in respect
206 OPINIONS OF THE ATTORNEY-GENERAL.
of such sinking fund an event of default with the same force and efifect
as if the same had been so denominated in Section 2 of Article Seven
hereof.
(g) To add to the limitations on the authorized amount, issue and pur-
poses of issue of bonds issuable under Section 7 of Article Three of this
indenture, other than the limitations herein provided for.
(h) To make provision in regard to matters or questions arising under
this indenture as may be necessary or desirable and not inconsistent with
this indenture. (P. 156, first mortgage.)
These provisions are certainly broad enough to permit
the supplemental indenture to deal with the limitation of the
amount of bonds which may be issued.
The supplemental indenture so made is of interest only
because it modifies the first mortgage by altering the defi-
nition of the words ''prior debts" as it was contained in the
first draft, so that the words are specifically said to include
every outstanding prior debt, whether a prior debt as
defined by the first mortgage or not. It further stipulates
that the authorized total issue of bonds "shall at all times
be limited to an amount, which, together with all out-
standing prior debts (including every outstanding prior
debt, whether or not included within the definition of prior
debt contained in this Indenture) . . . shall never at any
time exceed three times the then outstanding capital stock
of the Railroad Company. All certificates delivered to the
Trustee by the Railroad Company, upon requisitions for
the certification of bonds, shall, in addition to the other
statements therein required to be contained by this In-
denture, contain a statement of the amount of all out-
standing prior debts, of the Railroad Company in this
section la referred to after deducting therefrom the bonds
reserved under the provisions of this Indenture to retire
prior debts at maturity; such statements shall constitute
sufficient evidence to the Trustee, as to the facts therein
stated, and the Trustee shall be fully protected in acting
upon the faith thereof." (Article one, section 1, sup-
plemental indenture.)
JAY R. BENTON, ATTORNEY-GENERAL. 207
This change by the supplemental indenture, defining the
words "prior debts," the source of the adverse view of the
bonds for savings bank investment, to a definition so in-
clusive as to cover the bonds of the Louisville & Nashville
Southern 4% (first indenture, p. 72), clears away the existing
difficulty. The authorized outstanding issue under the
new provisions can never exceed, with all outstanding debts,
three times the value of the capital stock. This places
these bonds in a position where they will be a legal invest-
ment for savings banks and savings departments of trust
companies as soon as they have been properly executed.
Wrentham State School — Admission and Discharge
OF Pupils or Other Inmates.
The Trustees of the Wrentham State School are not authorized to receive those
who themselves ask admission.
The trustees are authorized to receive those for whom application is made by
parent or guardian.
Such parent or guardian has no right to take away such person from the school
without the consent of the trustees, except upon application to the court.
If in the opinion of the trustees inmates over the school age will receive benefit
from school instruction, the trustees are authorized to place such inmates in
the school department.
A minor placed in the school by his parent or guardian may be discharged after
reaching his majority only in the discretion of the trustees or upon applica-
tion to the court.
A minor committed to the school may be held in the custody of the school after
reaching his majority without a recommitment.
My opinion is requested on certain questions relative to TotheCom-
^ ^ 1 ^ missioner of
the duties of the board of trustees of the Wrentham State ^geasL.
School. j„S.
I understand the first question presented is as follows:
Are the trustees of the Wrentham State School authorized
to receive in the institution persons who themselves ask
admission?
G. L., c. 123, § 66, provides for commitment to the school
by a judge of probate. Sections 46 and 47 of said chapter
are as follows : —
208 OPINIONS OF THE ATTORNEY-GENERAL.
Section 46. Persons received by the Massachusetts school for the
feeble-minded and by the Wrentham state school shall be classified in said
departments as the trustees shall see fit, and the trustees may receive
and discharge pupils, and may at any time discharge any pupil or other
inmate and cause him to be removed to his home.
Section 47. The trustees of either of the state schools mentioned in
the two preceding sections may, at their discretion, receive any feeble-
minded person from any part of the commonwealth upon application
being made therefor by the parent or guardian of such person, which
application shall be accompanied by the certificate of a physician, quali-
fied as provided in section fifty-three that such person is deficient in men-
tal abihty, and that in the opinion of the physician he is a fit subject for
said school. The physician who makes the said certificate shall have
examined the alleged feeble-minded person within five days of his sign-
ing and making oath to the certificate. The trustees of either of said
state schools may also, at their discretion, receive any person from any
part of the commonwealth upon the written request of his parent or
legal guardian, and may detain him for observation for a period not
exceeding thirty days, to determine whether he is feeble-minded.
The statute makes no provision for admission of those
who themselves ask admission. I am of the opinion that
the trustees are authorized to receive only those persons
who have been committed by the Probate Court or those
who have been placed there upon application by the parent
or guardian.
The second question I understand to be as follows: Are
the trustees authorized to receive those for whom application
is made by parent or guardian?
Section 47 of said chapter 123 expressly provides for such
admission upon compliance with the requirements therein
set forth.
The third question presented is as follows: Can those
who have been placed in the school upon application by
a parent or guardian be taken from the school at any time
the parent or guardian sees fit?
St. 1909, c. 504, codified the law relative to insane persons.
Section 62 thereof (now, in substance, G. L., c. 123, § 46)
provided : —
JAY R. BENTON, ATTORNEY-GENERAL. 209
Persons received by the Massachusetts School for the Feeble-Minded
and by the Wrentham state school shall from time to time be classified in
said departments as the trustees shall see fit, and the trustees may receive
and discharge pupils at their discretion, and may at any time discharge
any pupil or other inmate and cause him to be removed to his home or
to the place of his settlement.
There is no other provision in the statute for their release
except upon apphcation to the court. This clearly shows
that the release of such persons, subject to the foregoing
exception, is entirely within the discretion of the board of
trustees.
It is to be noted that under section 62 of said chapter
504 the trustees were authorized to receive pupils. This
statute did not authorize the trustees to receive persons
into the custodial department. Gen. St. 1917, c. 223, § 2,
however, enlarged the right of the trustees so as to receive
persons into the custodial department. The power of the
trustees to discharge is the same whether the inmate is in
the school or in the custodial department. I therefore
advise you that, in my opinion, the parent or guardian has
no right to take away such person from the school without
the consent of the trustees.
Your fourth question is as follows : Have the tnistees the
right to expend the money of the Commonwealth in giving
instruction in the school department to persons over the
school age?
G. L., c. 123, § 45, reads as follows: — •
The Massachusetts school for the feeble-minded and the Wrentham
state school shall each maintain a school department for the instruction
and education of feeble-minded persons who are witliin the school age or
who in the judgment of the trustees thereof are capable of being benefited
b}'' school instruction, and a custodial department for the care and custody
of feeble-minded persons beyond the school age or not capable of being
benefited by school instruction.
It is clear from this section that it is discretionary with
the trustees whether or not a person over the school age
210 OPINIONS OF THE ATTORNEY-GENERAL.
shall be placed in the school department. If, in the opinion
of the board of trustees, such person will receive benefit
from school instruction, they are authorized to place such
person in the school department, irrespective of age.
Your fifth question is as follows: May any person who,
while a minor, was placed in the institution by his parent or
guardian be retained in the school against his will after
reaching the age of twenty-one?
This question falls under G. L., c. 123, § 46, and such a
person may be discharged from the school only in the
discretion of the board of trustees, except, of course, that
such a person or his parent or guardian may apply to the
court for discharge.
Your sixth question is as follows: Can a person who was
committed to the school while a minor be held in the custody
of the school after reaching the age of twenty-one, without
a recommitment?
G. L., c. 123, § 66, provides for commitment, and author-
izes custody of the person until he shall be discharged by
order of the court or otherwise in accordance with law.
Without a court order such person may be held by the school
until such time as, in the opinion of the trustees, he should
be discharged. The fact that he arrives at the age of
majority in no way concerns this question.
National Guard — Practising Rifle or Pistol Shoot-
ing ON Rifle Ranges on Sundays.
The discharge of firearms on Sunday for sport or in the pursuit of game is prohibited.
Members of the National Guard may legally practise rifle or pistol shooting on a
rifle or pistol range on Sundays, in the course of their military training.
tantGen'^raf ^o\i request my opinion as to whether it is legal for
junfis members of the NationaL Guard to practise rifle or pistol
shooting on any rifle or pistol range within the Common-
wealth on Sundays. You state that this practise constitutes
an important part of their military training, and that,
JAY R. BENTON, ATTORNEY-GENERAL. 211
owing to the limited amount of time at the disposal of the
members of the National Guard, it is desired that this duty
shall be performed on Sundays.
G. L., c. 136, § 17, provides, in part: —
Whoever on the Lord's day discharges any firearm for sport or in the
pursuit of game, . . . shall be punished by a fine of not more than ten
dollars. . . .
The discharge of firearms for sport or in the pursuit of game
is thereby prohibited. The discharge of firearms by
members of the National Guard, under the circumstances
to which you refer, is not a discharge for sport or in the
pursuit of game. Rifle and pistol practice is in the line of
military duty and, as you state, is an important part of
the military training.
I am of the opinion that members of the National Guard
may legally practise rifle and pistol shooting on a rifle or
pistol range within the Commonwealth on Sundays in the
course of their military training.
Standard Box for Farm Produce — Requirements as
TO Marking Boxes — Use of Risers in Packing
Apples.
Au apple grower who uses boxes which are standard according to St. 1921, c. 248,
must mark said boxes, if they contain apples, in accordance with the require-
ments of both said chapter 248 and G. L., c. 94, § 104.
The dimensions of the standard box for farm produce sold at wholesale, as defined
in St. 1921, c. 248, are not affected by the fact that in some instances, where
such box is used for the packing of apples, risers, so called, about five eighths
of an inch thick, are placed on the ends of the box; if the box contains the
dimensions required by statute it constitutes a standard box.
You request my opinion as to whether an apple grower T9theCom-
•■ '■ <^ missioner of
who uses boxes which are standard according to St. 1921, ^f^^f^"^^^-
c. 248, is obliged to mark such boxes both in accordance -^""^ ^^-
with the apple grading law and in accordance with the
standard box law. You also request my opinion as to
212 OPINIONS OF THE ATTORNEY-GENERAL.
whether a box of the same dimensions as the standard box
is to be considered standard if the ends are built higher
than the sides, or if risers are added to the ends, in order
properly to pack apples so as to fill the standard box even
full and permit covering, or whether in either or both cases
the boxes are not to be considered standard, and thus not
subject to marking as prescribed in chapter 248, supra.
St. 1921, c. 248, § 1, provides as follows: —
. . . The Massachusetts standard box for farm produce sold at whole-
sale, except as otherwise provided, shall contain two thousand one hun-
dred fifty and forty-two one hundredths cubic inches and shall be of the
following dimensions by inside measurements: seventeen and one half
inches in length by seventeen and one half inches in width and seven and
one sixteenth inches in depth. The Massachusetts standard half box
for farm produce sold at wholesale shall contain one thousand seventy-
five and twenty-one one hundredths cubic inches and shall be of the fol-
lowing dimensions by inside measurements: twelve and three eighths
inches in length by twelve and three eighths inches in width and seven and
one sixteenth inches in depth. When the above specified boxes are made
of wood the ends shall be not less than five eighths inches in thickness and
the sides and bottom not less than three eighths inches in thickness. All
such boxes and haK boxes of the dimensions specified herein shall be
marked on at least one outer side in bold, uncondensed capital letters,
not less than one inch in height: — Standard Box Farm Produce, — and,
— Standard Half Box Farm Produce, — respectively. Whoever marks
or otherwise represents any box or half box to be a standard box or half
box for the sale of farm produce at wholesale shall, unless such box or
half box compUes with every specification and requirement of this section,
be punished by a fine of not more than fifty dollars. The director of
standards in the department of labor and industries, his inspectors and
the sealers and deputy sealers of weights and measures in cities and towns
shall enforce the provisions of tins section.
G. L., c. 94, § 104, provides as follows: —
Each closed package of apples packed or repacked within the common-
wealth and intended for sale within or without the commonwealth, shall
have marked in a conspicuous place on the outside of the package in plain
letters a statement of the quantity of the contents, the name and address
of the person by whose authority the apples were packed, the true name
of the varietj^ and the grade and minimum size of the apples contained
JAY R. BENTON, ATTORNEY-GENERAL. 213
therein, in accordance with sections one hundred and one and one hundred
and three, and the name of the state where they were grown. If the true
name of the variety is not known to the packer or other person by whose
authority the apples are packed, the statement shall include the words
"variety unknown," and if the name of the state where the apples were
grown is not known, this fact shall also be set forth in the statement. If
apples are repacked, the package shall he marked "repacked," and shall
bear the name and address of the person by whose authority it is repacked,
in place of that of the person by whose authority they were originally
packed.
This section pertains to packages containing apples,
while St. 1921, c. 248, pertains to ''standard for boxes and
half boxes for farm produce sold at wholesale." Each
statute contains a mandator}^ requirement as to marking
on the outside of the package or box. I am accordingly
of the opinion that an apple grower who uses boxes which
are standard according to St. 1921, c. 248, must mark said
boxes, if they contain apples, in accordance with the require-
ments of both said chapter 248 and G. L., c. 94, §104.
The dimensions of the standard box for farm produce
sold at wholesale, as defined in St. 1921, c. 248, are not, in
my opinion, affected by the fact that in certain instances,
where said box is used for the packing of apples, risers, so
called, about five-eighths of an inch thick, are placed on
the ends of the box, inasmuch as it appears that most
varieties of apples will not pack in such a way as to fill
the standard box even full but will over-run somewhat so
that they cannot be covered unless the sides or ends of the
box are increased in height. The purpose of the risers is
obviously merely to permit the box to be suitably covered,
and if the box contains the dimensions provided for in said
act I am of the opinion that it constitutes a standard box,
as therein defined, although in the cases referred to it is
necessary to attach such risers.
214 opinions of the attorney-general.
Insurance — Policies to Tobacco Growers for Damage
BY Hail — Difference in Cost of Policies to Dif-
ferent Persons, based on Membership or Non-
membership IN AN Association of Tobacco Growers
— Rebates.
G. L., c. 175, § 182, prohibits the giving by an insurance company of a lower rate
to certain insureds merely because the favored insureds are members of a
particular association.
There may be an allowable difference in rates for policies to tobacco growers, if
it is based upon a reasonable mode of classifying the insureds.
m?9sionS°of' You ask me for an opinion as to whether or not the course
insm-ance. followed by an insurance company in issuing policies to
"^^ ■ tobacco growers generally, for damage by hail, at a regular
rate of $50 an acre, while at the same time it sells policies
of a similar character to members of an association of tobacco
growers, and to them only, at a rate of $24, is, under all the
circumstances, a violation of G. L., c. 175, § 182, which
forbids the giving of rebates and other advantages to
certain customers.
As I understand the letter given to you by the vice-presi-
dent of the insurance company in answer to a letter written
by a tobacco grower (hereinafter called the ''complainant"),
the insurance company does give, if desired, to some 2,000
members of the tobacco association insurance against loss
by hail, at the rate of $24 an acre, but will not sell at this
price to non-members, of whom the complainant is one.
The insurance company contends that this lower rate given
to these particular persons, is not in the nature of a rebate
or other advantage forbidden by the statute, because the
members of this association agree to write eighty per cent
of their insurance with this particular insurance company;
that much of this tobacco so offered for insurance is in other
and more desirable localities than that of the complainant,
and so more desirable as a risk to the company ; and that also
the members of the association agree to write their fire
insurance on their tobacco, as well as their hail insurance,
JAY R. BENTON, ATTORNEY-GENERAL. 215
with this insurance company, which the complainant does
not do.
The statute under consideration is as follows (G. L., c.
175, § 182): —
No company, no officer or agent thereof and no insurance broker shall
pay or allow, or offer to pay or allow, in connection with placing or nego-
tiating any policy of insurance or any annuity or pure endowment con-
tract or the continuance or renewal thereof, any valuable consideration
or inducement not specified in the policy or contract, or any special favor
or advantage in the dividends or other benefits to accrue thereon; or shall
give, sell, or purchase, or offer to give, sell or purchase, an j- thing of value
whatsoever not specified in the policy; or shall give, sell, negotiate, deliver,
issue, or authorize to issue or offer to give, sell, negotiate, deliver, issue,
or authorize to issue any policy of workmen's compensation insurance
at a rate less than that approved by the commissioner. No such com-
pany, officer, agent or broker shall at any time pay or allow, or offer to
pay or allow, any rebate of any premium paid or payable on any policy
of insurance or any annuity or pure endowment contract.
The statute is aimed to prevent discrimination between
individuals of the same class. To favor one particular
member of a class merely because he buys more insurance
or more kinds of insurance than another is prohibited by
the statute. V Op. Atty. Gen. 543.
Nevertheless, there is no doubt but that there may be
made a reasonable classification among insurers of the same
kind of property, based not upon volume of business but
upon quality; that is, upon a less hazardous undertaking.
It may be that, under the arrangement made between the
company and the association referred to, a class of insureds
different from the one to which the complainant belongs
may reasonably be said to exist. The fact that the proper-
ties of this latter class are in widely scattered localities,
and in widely separated areas, where the average hazard
will not be as great as in the district in which alone the
assured desires property insured, may be, if the facts justify
it, a reasonable mode of classification which would give no
undue advantage to one assured over another, within the
216 OPINIONS OF THE ATTORNEY-GENERAL.
meaning of the statutes. Whether all the facts necessary
to be ascertained relative to the business of tobacco growing
make such a form of classification reasonable, is itself a
question of fact, upon which it is not my province to pass.
The mere fact that the members of the association of
growers offered a larger volume of business than that offered
by the complainant, would not, in itself, furnish a reasonable
ground for placing them in a different classification as to
rates. The mere fact that they were members of an asso-
ciation, as such, would not make their classification reason-
able. The mere fact that they offered to place fire insurance
as well as hail insurance, would not make the classification
reasonable. But if the facts in this particular trade, relative
to variation in the grade of tobacco grown in various local-
ities, show that the tobacco offered by members of this
association, by reason of the variety of the places of growth,
tends to make the offerings, on the whole, much less hazard-
ous risks, than the risk offered by the complainant's tobacco
from a single and possibly unfavorable locality, then it is
possible that, as I have said, as a matter of fact a classi-
fication of insureds, such as was practised by this insurance
compatiy, might not be unreasonable.
Taxation — Foreign Corporations — Allocation of
Income.
Under Gen. St. 1919, c. 355, §§ 19 and 20 (G. L., c. 63, §§ 41 and 42), a foreign
corporation must give notice in each year of its refusal to accept determination
of income allocable to the Commonwealth by the statutory method provided
by section 19, as a basis of its right to have its net income derived from busi-
ness carried on within the Commonwealth determined by the alternative
method provided by section 20.
Jf°ASpeann'^ You have requested my opinion in the matter of an excise
Tax Cases., ^^^ assesscd upou the Childs Dining Hall Company for the
ju^3. yg^j. ]^g21. The following facts appear from the statement
contained in your request.
The Childs Dining Hall Company is a foreign corporation
JAY R. BENTON, ATTORNEY-GENERAL. 217
doing business in this Commonwealth and in other States.
Under date of April 8, 1920, in accordance with the statutory
provisions contained in Gen. St. 1919, c. 355, §§ 19 and 20
(G. L., c. 63, §§41 and 42), the company notified the Com-
missioner of its refusal to accept the determination of its
net income derived from business carried on within the
Commonwealth in the manner provided by section 19, and
thereafter filed its return for the year 1920 with its own
allocating method attached thereto. The Commissioner
assessed a tax for the year 1920 on the basis of the allocating
method set out in the statute, and the company appealed to
the Board of Appeal, which subsequently revised the de-
termination of the Commissioner.
While the application for a hearing by the Board of Appeal
was pending and before the hearing, the time arrived for
the filing of the 1921 return. The corporation filed its
return for that year on or about May 11, 1921, with a
statement of reasons for late filing and with the same
allocating method as in 1920. No refusal to accept the
statutory method was filed with respect to the return for
1921, unless the notification of April 8, 1920, constituted
such notification or unless such notification may be inferred
from the pending proceedings relative to the 1920 tax.
The Commissioner determined the 1921 tax by the method
provided by G. L., c. 63, § 41. The company paid the tax
under protest, and after numerous hearings the Com-
missioner refused to abate the tax and the company appealed
again to the Board of Appeal. You ask whether the Board
of Appeal can act favorably upon the appeal.
G. L., c. 63, §§ 41 and 42, are as follows: —
Section 41. The Commissioner shall determine in the manner pro-
vided in this section the part of the net income of a foreign corporation
derived from business carried on within the commonwealth.
The following classes of income shall be allocated as follows:
(a) Gains realized from the sale of capital assets, if such assets consist
of real estate or tangible personal property situated in the commonwealth,
shall be allocated to this commonwealth.
218 OPINIONS OF THE ATTORNEY-GENERAL.
(6) Interest received from any corporation organized under the laws
of the commonwealth or horn any association, partnership or trust having
transferable shares and having its principal place of business in the
commonwealth, or from any inhabitant of the commonwealth, except
interest received on deposits in trust companies or in national banks
doing business in the commonwealth, shall be allocated to this common-
wealth.
(c) Gains realized from the sale of capital assets other than those
named in paragraph (a) above shall not be allocated in any part to this
commonwealth.
Income of the foregoing classes having thus been allocated, the re-
mainder of the net income as defined in section thirty shall be allocated
as follows:
If a foreign business corporation carries on no business outside this
commonwealth, the whole of said remainder shall be allocated to this
commonwealth.
If a foreign business corporation carries on any business outside this
commonwealth, the net income taxable under this chapter shall be de-
termined as provided in section thirty-eight. _
Section 42. A foreign corporation carrying on part of its business
outside the commonwealth may, in lieu of the allocating method required
by the preceding section for determining the amount of business assign-
able to this commonwealth, refuse to accept such determination by noti-
fication thereof to the commissioner on or before the time when its income
tax return under this chapter is due to be filed. Such a foreign corporation
shall, within thirty days thereafter, file with the commissioner, under
oath of its treasurer, a statement in such detail as the commissioner shall
require, showing the amount of its annual net income derived from busi-
ness carried on within the commonwealth. The commissioner may
require such further information with reference thereto as he may deem
necessary for the assessment of the tax, and shall determine the proportion
of the net income received from business carried on within the common-
wealth.
It is my opinion that G. L., c. 63, § 42, and the correspond-
ing provision of the statute of 1919 require definite action
each year by a foreign corporation which desires to refuse
to accept a determination of net income derived from
business carried on within the Commonwealth according
to the statutory method provided by the preceding section,
by a notification each year to the Commissioner of the
refusal of the corporation to accept such determination;
JAY R. BENTON, ATTORNEY-GENERAL. 219
and that such notification is not to be inferred from the
giving of a similar notice for a preceding year or from pro-
ceedings had in consequence of such prior notice. The
reference in section 42 to ''the time when its income tax
return under this chapter is due to be filed" and the require-
ment that the corporation "shall, within thirty days there-
after, file with the commissioner" the required statement,
seem to me to preclude any other construction. I must
advise you, therefore, that under the circumstances the
determination made by the Commissioner seems to have
been the only one legally permissible, and that the amount
of the tax resulting therefrom seems to be fixed as a matter
of law.
Teachers' Retirement Association — Withdrawal of
Membership — Refund — Retiring Allowance.
A teacher who has not attained the age of sixty may withdraw from the public
school service under the provisions of G. L., c. 32, § 11, and is entitled to receive
from the annuity fund all amounts contributed as assessments, together with
regular interest thereon; and having so withdrawn and received said refund,
such teacher has thereby withdrawn entirely from the public school service.
G. L., c. 32, § 10, par. (2), provides for a mandatory retirement from service in the
public schools by any member of the association on attaining the age of
seventy years, and § 10, par. (1), permits a teacher between the ages of sixty
and seventy to apply for retirement; and on retirement such a teacher has
withdrawn from the public school service.
A voluntary member of the Teachers' Retirement Association sixty years of age
or over, who has terminated his service as a teacher in the public schools,
is not entitled to receive a refund of his contributions, but must accept the
retiring allowance provided by the statute.
The phrase "any member," as used in G. L., c. 32, § 10, applies to voluntary
members, i.e., teachers who entered the service of the public schools before
July 1, 1914, and who have elected to become members of the association, as
well as to teachers who entered the service of the public schools for the first
time after July 1, 1914, and thereby ipso facto became members of the asso-
ciation by virtue of the provisions of section 7.
You request my opinion on the following questions : — m°ssionS°^"
Education.
1923
1. Can a teacher who voluntarily joined the Massachusetts Teachers' Ju^6.
Retirement Association withdraw from membership in the Association,
receiving a refund of his contributions with interest, without with-
220 OPINIONS OF THE ATTORNEY-GENERAL.
drawing from the public school service — (a) If he has not attained the
age of sixty? (b) If he is sixty years of age or over?
2. Can a voluntary member sixty years of age or over who has termi-
nated his service as a teacher in the public schools withdraw from member-
ship in the Retirement Association, receiving a refund of his contributions
with interest, or must he, either at the time he terminates his service or
at some time thereafter, accept a retiring allowance?
3. Can a teacher who entered the service of the public schools of Massa-
chusetts for the first time after July 1, 1914, thereby being required to
join the Retirement Association, receive a refund of his contributions
with interest upon terminating his service in the public schools after he
has attained the age of sixty, or must he, either at the time he terminates
his service or at some time thereafter, accept a retiring allowance?
1. G. L., c. 32, §§ 6-19, pertain to retirement system
for teachers. Section 7 thereof provides as follows : —
There shall be a teachers' retirement association organized as follows:
(1) All persons now members of the teachers' retirement association
established on July first, nineteen hundred and fourteen, shall be members
thereof.
(2) All teachers hereafter entering the service of the public schools
for the first time shall thereby become members of the association.
(3) Any teacher who entered the service of the public schools before
July first, nineteen hundred and fourteen, who has not become a member
of the association, may hereafter, before attaining the age of seventy,
upon written application to the board, become a member of the association
by paying an amount equal to the total assessments, together with regular
interest thereon, which he would have paid if he had joined the association
on September thirtieth, nineteen hundred and fourteen.
(4) Teachers in training schools maintained and controlled by the
department of education shall be considered as public school teachers
under sections seven to nineteen, inclusive, and such a teacher upon be-
coming a member of the association shall thereafter paj^ assessments
based upon his total salary including the part paid by the commonwealth;
provided, that the total assessments shall not exceed one hundred dollars
in any year. Such assessments shall be deducted in accordance with the
rules prescribed by the board. This paragraph shall not apply to teachers
regularly employed in the normal schools and therefore subject to sections
one to five, inclusive, although they devote a part of their time to training
school work.
Section 10 provides, in part: —
JAY R. BENTON, ATTORNEY-GENERAL. 221
(1) Any member of the association shall, on written application to
the board, be retired from service in the public schools on attaining the
age of sixty, or at any time thereafter. . . .
(2) Any member, on attaining the age of seventy, shall be retired from
service in the public schools at the end of the school year in which said
age is attained, but any member attaining that age in July, August or
September shall then be retired.
The provision authorizing withdrawal and reinstatement
of members of the pubhc school service is contained in
section 11 as follows: —
(1) Any member withdrawing from the public school service before
becoming eligible to retirement, except for the purpose of entering the
service of the commonwealth, and any member who becomes subject to
chapter two hundred and thirty-seven of the acts of nineteen hundred
and chapter five hundred and eighty-nine of the acts of nineteen hundred
and eight as amended shall be entitled to receive from the annuity fund
all amounts contributed as assessments, together with regular interest
thereon, either in one sum or, at the election of the board in four quarterly
payments. If a member dies before receiving all his quarterly pajTnents
the balance thereof shall be paid to his estate.
(2) Any member thus mthdrawing, after having paid ten annual assess-
ments, may receive, at his election and in lieu of payments under para-
graph (1) of this section, an annuity for life, as determined by the board,
of such amount as the sum of his assessments under section nine, para-
graph (2), with regular intei'est thereon, shall entitle him to receive, with
the provision that if he dies before receiving pajanents equal to the
amount used to purchase the annuity the difference shall be paid to his
estate.
(3) Anj^ member after having mthdrawn from the public school service
shall, on being re-employed in such service, be reinstated as a member in
accordance with such rules for reinstatement as the board shall adopt.
(4) If a member who is not receiving payments under paragraph (1)
or (2) of this section dies before retirement, the full amount of his assess-
ments, with regular interest thereon, shall be paid to his estate.
Under the statute a teacher who entered the service of
the public schools before July 1, 1914, has an option whether
to become a member of the Teachers' Retirement Association
or not, whereas all teachers entering the service of the public
schools for the first time after July 1, 1914, "shall thereby
222 OPINIONS OF THE ATTORNEY-GENERAL.
become members of the association." Inasmuch as your
first question relates to a teacher who "voluntarily" joined
the Massachusetts Teachers' Retirement Association, it is
clear that such a teacher must have entered the service of
the pubhc schools before July 1, 1914.
Leaving out of present consideration the case of a teacher
who has become permanently incapable of rendering satis-
factory service by reason of physical or mental disability
and is accordingly retired, as provided in section 10, para-
graph (8), it is clear that a teacher who has not attained
the age of sixty, and consequently has not become eligible
to retirement, may withdraw from the public school service
under the provisions of section 11, and if he does so he is en-
titled to receive from the annuity fund all amounts contri-
buted as assessments, together with regular interest thereon,
either in one sum or, at the election of the board, in four
quarterly payments. Having so withdrawn and received
his proper refund, I am of the opinion that such teacher has
thereby ipso facto withdrawn entirely from the public school
service. Any other conclusion would be inconsistent with
the purpose and effect of the statute.
G. L., c. 32, § 10, par. (2), provides for a mandatory retire-
ment from service in the public schools by any member of
the association on attaining the age of seventy. Said
section also provides, in paragraph (1), that any member
of the association on attaining the age of sixty ''shall, on
written application to the board, be retired . . ." The
context discloses that between the ages of sixty and seventy
a teacher may apply for retirement. If a teacher, on at-
taining the age of sixty, does not file a written application
for retirement to the Teachers' Retirement Board, he is
apparently entitled to continue in service, unless in the
opinion of the employing school committee he is incapable
of rendering satisfactory service as a teacher, in which event
he may, with the approval of said board, be retired by such
committee or employer. The same reasons appear to follow
in the case of such a teacher who has attained the age of
JAY R. BENTON, ATTORNEY-GENERAL. 223
sixty years as in the case of one who has not attained said
age, and I am accordingly of the opinion that such a teacher
on retirement has withdrawn from the public school service.
2. G. L., c. 32, § 10, par. (5), provides as follows: —
Any member who served as a regular teacher in the public schools
prior to July first, nineteen hundred and fourteen, and who has served
fifteen years or more in the public schools, not less than five of which shall
immediately precede retirement, on retiring as provided in paragraph
(1) or (2) of this section, shall be entitled to receive a retirement allowance
as follows: (a) such annuity and pension as may be due under paragraphs
(3) and (4) of this section; (b) an additional pension to such an amount
that the sum of this additional pension and the pension provided in
paragraph (4) of this section shall equal the pension to which he would
have been entitled under sections seven to nineteen, inclusive, if he had
paid thirtj^ assessments based on his average yearly rate of salary for the
five years immediately preceding his retirement, at the rate of assess-
ment in effect at that time, and his account had been annually credited
with interest at the rate of four per cent per annum; provided, that if
his term of service in the commonwealth shall have been over thirty
years, the thirty assessments, with interest as provided above, shall be
credited mth interest at the rate of four per cent, compounded annually
for each year of service in excess of thirty; but the assumed accumulation
of assessments with interest under this paragraph shall not exceed the
amount which at the age of sixty and in accordance with clause (a) of
paragraph (3) of this section will purchase an annuity of five hundred
dollars, and the minimum pension shall be of such an amount that the
annual pension, plus the annual amount which would have been paid
from the annuity fund if the member had chosen an annuity computed
under clause (3) (a) of this section, shall be four hundred dollars. If
a member is at any time eligible to retire and receive a pension computed
under this paragraph, he shall receive upon retirement a pension computed
hereunder without the necessity of five years of continuous service
preceding retirement.
In an opinion rendered by a former Attorney General to
the Board of Retirement, (V Op. Atty. Gen. 192), it was
decided that under the statutes governing the retirement
system for employees of the Commonwealth any member
of the Retirement Association who ceases to be an employee
after he has acquired voluntary retirement rights is not
entitled to a refund of his payments, the only course open
224 OPINIONS OF THE ATTORNEY-GENERAL.
to him upon leaving the service being to exercise his retire-
ment rights and to accept a pension.
The statute under consideration contains no provision
authorizing a refund of contributions with interest under
the facts stated in your second question, and I am accord-
ingly of the opinion that such a voluntary member, sixty
years of age or over, who has terminated his service as a
teacher in the pubhc schools is not entitled to receive a
refund of his contributions but must accept the retiring
allowance provided by the statute.
3. G. L., c. 32, § 10, provides that "any member" of the
association may, on written application to the Teachers'
Retirement Board, be retired on attaining the age of sixty.
This accordingly applies to voluntary members, that is,
teachers who entered the service of the public schools before
July 1, 1914, and who have elected to become members of
the association, as well as to teachers who entered the service
of the public schools for the first time after July 1, 1914,
and thereby ipso facto became members of the association
by virtue of section 7. Therefore, the same conclusion
reached in my answer to your second question applies to
your third question, and I am accordingly of the opinion
that such a teacher is not entitled to receive a refund of his
contributions with interest, but he must accept the retiring
allowance provided by said section 10.
July 16.
jay r. benton, attorney-general. 225
Soldiers' Relief — Dependents — Re-enlistment in
Time of Peace — Veteran — Honorable Discharge
— Effect of Dishonorable Discharge.
The dependents of a person who served honorably in the war with Spain or in the
World War, if otherwise eligible to receive soldiers' relief under G. L., c. 115,
§ 17, are not deprived of the benefits conferred thereby merely because the
soldier later enlisted when the country was not at war and is serving in a peace-
time enlistment.
A veteran, otherwise eligible, is entitled to receive the benefits of State and military
aid and soldiers' relief under the provisions of G. L., c. 115, where such veteran
had an honorable discharge from his war service, although in an enlistment
prior or subsequent to such war service he received a dishonorable discharge
from the service, unless the dislionorable discharge be in itself the direct and
proximate cause of the inability of the veteran wholly or partly to provide
maintenance for himself and his dependents.
You request my opinion on the following questions : — mtssfeii^r""? '
State Aid and
Pensions.
1. Are the dependents of a person who served honorably in the war ^^f^\f.
with Spain or in the World War, and later re-enUsted when the country
was not at war, eligible to receive soldiers' reUef when the soldier, sailor
or marine is serving in a peace-time enlistment?
2. Is a veteran eligible to receive the benefits of State and militaiy aid
and soldiers' relief under the provisions of G. L., c. 115, where such veteran
had an honorable discharge from his war service, but in an enlistment
prior or subsequent to war service received a dishonorable discharge from
the service?
1. G. L., c. 115, § 17, provides, in part, as follows: —
If a person who served in the army or navy of the United States in the war
of the rebellion, in the army, navy or marine corps in the war with Spain
or the Philippine insurrection between April twenty-first, eighteen hundred
and ninety-eight, and July fourth, nineteen hundred and two, or in the
army, navy or marine corps in the world war and received an honorable
discharge from all enlistments therein, and who has a legal settlement in
a town in the commonwealth, becomes from any cause, except his own
criminal or -wilful misconduct, poor and wholly or partly unable to provide
maintenance for himself, his wife or minor children under sixteen years,
or for a dependent father or mother, or if such person dies leaving a widow
or such minor children or a dependent father or mother without proper
means of support, such support as may be necessary shall be accorded
to him or his said dependents by the town where they or any of them have
a legal settlement; but should such person have all the said qualifications
226 OPINIONS OF THE ATTORNEY-GENERAL.
except settlement, his widow, who has acquired a legal settlement in her
own right before August twelfth, nineteen hundred and sixteen, which
settlement has not been defeated or lost, shall also be eligible to receive
relief under this section. Such relief shall be furnished by the aldermen
or selectmen, or, in Boston, by the soldiers' relief commissioner, subject,
however, to the direction of the city council of said city as to the amount
to be paid. The beneficiary shall receive said relief at home, or at such
other place as the alderman, selectmen or soldiers' relief commissioner
deem proper, but he shall not be compelled to receive the same at an
almshouse or public institution unless his physical or mental condition
requires, or, if a minor, unless his parents or guardian so elect.
The answer to this question depends upon what is meant
by the phrase "and received an honorable discharge from all
enlistments therein" as used in the statute. If the Legis-
lature intended this expression to refer to any and all en-
listments in the Army and Navy, whether in time of war or in
time of peace, it would follow that both of your questions
must be answered in the negative. But, in my opinion, the
context does not so indicate. The phraseology used seems
to disclose the legislative intent that the only enlistments
here referred to are enHstments in the Army or Navy of the
United States "in the war of the rebelUon, . . in the war
with Spain or the Philippine insurrection ... or in the
army, navy or marine corps in the world war."
The soldiers' relief provided for by G. L., c. 115, § 17,
seems to be distinct from that provided for by G. L., c. 115,
§§6 and 10. In the latter statute the context clearly
demonstrates that any and all enlistments are meant, while
section 17 seems to be confined to war time enHstments and
service.
G. L., c. 115, § 6, provides that the recipient of State aid
shall comply with certain conditions precedent, among which
are the following: that he "shall have been honorably dis-
charged from all appointments and enUstments in the
army or navy, shall be so far disabled, as the result of his
service in the army or navy, as to prevent him from fol-
lowing his usual occupation." This pertains to veterans
disabled as the result of service in the Army or Navy. G. L.,
JAY R. BENTON, ATTORNEY-GENERAL. 227
c. 115, § 10, refers to military aid, and provides that the
recipient shall belong to and have the qualifications of the
four classes therein enumerated. This section likewise
provides that the recipient "shall have been honorably
discharged or released from active duty in such United
States service and from all appointments and enlistments
therein." Section 10 clearly pertains to veterans whose
disability arose from causes independent of military or
naval service, and who would otherwise be obliged to receive
relief under the pauper laws. There is likewise a require-
ment as to settlement or residence in the towns aiding.
While the question is not free from difficulty, owing to the
various classes of State aid, military aid and soldiers' relief,
and the conditions precedent pertaining thereto, outlined
in the statute, I am of the opinion that the dependents of
a person who served honorably in the war with Spain or in
the World War, if otherwise eligible to receive soldiers'
relief under section 17, supra, are not deprived of the benefits
conferred thereby merely because the soldier later enlisted
when the country was not at war and is serving in a peace-
time enlistment.
In an opinion rendered the Superintendent of State Adult
Poor, dated January 13, 1903 (II Op. Atty. Gen. 408),
construing the above section (then R. L., c. 79, § 18), a
former Attorney General said : —
The purpose of the act was undoubtedly to insure the proper main-
tenance of worthy veterans and their families, and the aid to be furnished
to the widow or other relatives of the soldier himself was in the nature of
a reward to him, and an assurance that those dependent upon him should
be provided for.
2. The conclusions reached in the answer to your first
question likewise control the answer to your second question.
It accordingly follows that such a soldier or his dependents
are entitled to soldiers' relief if he becomes from any cause,
"except his own criminal or wilful misconduct, poor and
wholly or partly unable to provide maintenance for himself"
228 OPINIONS OF THE ATTORNEY-GENERAL.
or his dependents therein specified, unless the dishonorable
discharge referred to in your question be in itself the direct
and proximate cause of the inability of the veteran wholly
or partly to provide maintenance for himself and his de-
pendents, in which event it would seem that such veteran
would not be entitled to the relief afforded by section 17
aforesaid.
I may also direct your attention to an opinion rendered by
a former Attorney General (I Op. Atty. Gen. 27), in which
it was decided that a man who enlisted in Massachusetts
during the war of the rebellion and was honorably discharged
is entitled to military aid under St. 1889, c. 279, §2, par. 3
(G. L., c. 115, § 10), notwithstanding that previous to his
enlistment in Massachusetts he had been dishonorably
discharged from a Rhode Island regiment.
Police Commissioner of Boston — Civil Service —
non-competitive examinations.
The Commissioner of Civil Service alone has the power to determine whether
examinations for promotion in the poHce force of Boston are to be by com-
petitive or non-competitive examinations.
cCmmis^rdner ^ou TeQuest my opinion as to whether you are compelled
°^i923*°°' to consider for promotion only those members of your depart-
"tLl ■ ment whose names are certified to you from the various
lists by the Commissioner of Civil Service, or whether you
can, under G. L., c. 31, § 20, send to the Civil Service Com-
missioner, for non-competitive examination, the names of
those members of your department, with special quali-
fications, whom you deem worthy of promotion.
The police department of the city of Boston was subject
to the statutes relative to civil service, under R. L., c. 19.
Under this statute the Civil Service Commissioners were
authorized to make rules regulating the selection of persons
to fill appointive positions in the several cities, not in-
consistent with law, and of general or limited application,
JAY R. BENTON, ATTORNEY-GENERAL. 229
among other things, to open competitive and other exam-
inations, and to promotions, the latter, if practicable, on the
basis of ascertained merit in the examination and seniority
of service (R. L., c. 19, § 7), and this same power the Com-
mission had had since the institution of the sj^stem by St.
1884, c. 320.
In the rules made by the Civil Service Commission after
the passage of the Revised Laws, and continued in effect
and now printed with Civil Service Law and Rules, 1922, as
"Rule 28. Promotion,'^ it was and is provided: —
1. Ill the Official Service, a promotion from one grade, as fixed by the
rules or determined by the Commissioner, to another grade in the same
class, shall not be valid until the candidate or candidates for promotion
shall have been subjected to a competitive or non-competitive exami-
nation, as the Commissioner may decide, except as otherwise required
by statute.
In other words, the Commissioner had the discretion to
decide whether a promotion should be determined by com-
petitive or non-competitive examination.
St. 1920, c. 368, § 3, provided that appointments and
promotions in the police forces of cities "shall hereafter be
made only by competitive" examination. This act applied
to all cities alike, and swept away the effect of Civil Service
Rule 47, by which the Commissioner had discretionary
power to say whether the examination for promotion should
be competitive or non-competitive. The examination was
required to be competitive in every instance, and applied
equally to Boston as to other cities.
The language of St. 1920, c. 368, § 3, was, however,
modified by the passage of G. L., c. 31, § 20, so that the law
requiring competitive examinations for promotions and
appointments in the police forces did not apply to the city
of Boston.
This chapter removed the prohibition miposed on the
Commissioner by St. 1920, c. 368, § 3, to permit non-com-
petitive examinations to be held, as far as the city of Boston
was concerned.
230
OPINIONS OF THE ATTORNEY-GENERAL.
The matter of appointments and promotions in the pohce
department of the city of Boston, then, is left just where
it was prior to the act of 1920, and, under the general pro-
visions of the civil service law, R. L., c. 19, which had not
been modified by any further intervening legislation, the
examinations for appointment and promotion in the Boston
police force were again subject to the rules and regulations
of the Civil Service Commission. Rule 28 is still in force,
and under it the Commissioner has the power to determine
whether examinations for promotion in the police force of
Boston are to be by competitive or non-competitive exam-
ination.
Jurisdiction of the Commonwealth and of the United
States — Application of State Penal Statutes.
When the United States acquires lands within the limits of Massachusetts, with
the consent of the Legislature of this Commonwealth, for the erection of a
hospital, the Federal Constitution confers upon the United States the exclusive
jurisdiction of the tract so acquired, and therefore penal statutes of this
Commonwealth concerning the installation and use of compressed air tanks
cannot constitutionally apply to contractors while engaged in work within the
limits of a place under the exclusive jurisdiction of the Federal government.
To the Com-
missioner of
Public Safety.
1923
August 13.
You ask my opinion "as to the jurisdiction of the Com-
monwealth in requiring a contractor or sub-contractor
operating as such under a Federal government contract,
upon land owned by the Federal government and under
Federal supervision, to meet requirements of the laws of
this Commonwealth as to inspection and approval, or other-
wise, of apparatus used by said contractors or sub-con-
tractors."
It appears from the report submitted by an inspector in
the Department of Public Safety, annexed to your letter,
that a compressed air tank, or tank for the storage of com-
pressed air, on the new stand-pipe installation at the Federal
hospital, Leeds, Massachusetts, has been installed by certain
contractors employed by the Federal government, under
the general charge or direction of an officer of the United
JAY R. BENTON, ATTORNEY-GENERAL. 231
States Army, which has not been inspected, and which, in
the opinion of the inspector, does not correspond with the
standard for such tanks prescribed by the Department of
Pubhc Safety, under the provisions of G. L., c. 146, §§34
to 41, inclusive. It is stated in said report that such tank
is now upon the ground acquired by the United States,
and the tank in question is being there used by the con-
tractors in connection with the work of building a stand-
pipe to be used in connection with the hospital, when the
latter is completed. In connection with this tank con-
struction is an air tank and compressor, the compressed
air being used for operating pneumatic hammers.
The tank in question is actually upon the ground acquired
by the United States, and is being used by the contractors
employed by or for the United States in the erection of a
hospital on such land, which was the particular purpose
for which such land was so acquired.
The statute in question is a penal statute, there being a
provision in section 41 for fine and imprisonment, or both,
for any person installing, using or causing to be installed
or used tanks for the storage of compressed air which have
not been inspected and certified as to their safety by State
inspectors, and which do not conform to certain require-
ments named in the statute. The statute also calls for the
payment of a fee for such inspection by the owner, agent or
user of such tank.
Where land has been acquired by the United States within
the jurisdiction of a State, it makes no difference whether
it be for a military or civil purpose; and unless the acqui-
sition be by the State's own act, with certain restrictions
agreed to by the Federal government at the time of such
cession by the State, the authority of the Federal govern-
ment over such land is paramount in all acts connected with
the purpose for which the land was taken. Even if the
State attached concessions to the ceding of the land, they
will be valid only if they do not interfere with the purpose
for which the jurisdiction is ceded. Congress has exclusive
232 OPINIONS OF THE ATTORNEY-GENERAL.
jurisdiction over the lands, including "needful buildings."
Newcomb v. Rockport, 183 Mass. 76. And the United States
has the power to carry on the work for which the land was
acquired in whatsoever way it sees fit, and the pursuance
of such work in whatever way Congress, acting through
duly appointed officers and agents, sees fit cannot be impeded
by the ordinances of the State wherein the land lies, even
if such ordinances be enacted to promote health and safety.
The Federal government, through its agents, is the arbiter
as to what means promote health and safety upon the par-
ticular work in hand. So it has been held in a leading case
that the superintendent of a soldiers' home on land acquired
by the Federal government is solely under the jurisdiction of
Congress and is not amenable to State laws relative to the
serving and use of oleomargarine. Ohio v. Thomas, 173
U. S. 276.
It is immaterial whether the act done on the Federal
government's land be done directly by employees of the
government or through contractors who, for the purpose of
carrying on the work, act to some extent as the agents of
the Federal government, and the contractors' employees
in like manner. These all, while carrying out the work
undertaken by the Federal government, are equally pro-
tected from the provisions of a penal State statute such as
the one under discussion.
In Tennessee v. Davis, 100 U. S. 257, the court said that
the government can act only through its agents and servants.
If, when thus acting, within the scope of their authority,
they can be arrested and brought to trial in a State court
for an alleged offence against the State authority, yet
warranted by the Federal authority, and if the Federal
government is powerless to help them, — the operations
of the Federal government may at any time be arrested
at the will of one of its members.
And to the same effect see Ex parte Siebold, 100 U. S. 371.
So it has been held that a Federal and not a State statute
as to hours of work for contractors' laborers applies on
JAY R. BENTON, ATTORNEY-GENERAL. 233
Federal public works. United States v. San Francisco
Bridge Co., 88 Fed. Rep. 891. See also, In re Turner, 119
Fed. Rep. 231 ; and In re N eagle, 135 U. S. 1.
In Johnson v. Maryland, 254 U. S. 51, it was held that
State laws penalizing those who operate motor trucks with-
out having obtained licenses based on examinations and
payment of a fee cannot constitutionally apply to an em-
ployee of the post office while engaged in driving a govern-
ment truck over a post road, in the performance of his
official duty.
Again, it has been held that State regulations relative
to penalties for non-delivery of telegrams cannot apply
upon land acquired by the Federal government. Western
Union Tel. Co. v. Chiles, 214 U. S. 274.
The exclusive character of the Federal government over
land acquired, to the exclusion of the police regulations of
the State, has been stated with great strength in Fort
Leavenworth R.R. Co. v, Lowe, 114 U. S. 525.
This view of the law was taken from a very early date by
the courts of Massachusetts. The Supreme Judicial Court
decided that the State statute regulating the amount of
stone which would be carried in a sailing vessel did not apply
to a vessel at the Charlestown Navy Yard, even if used
only on waters within the ordinary jurisdiction of the State.
Mitchell V. Tibbetts, 17 Pick. 298.
The general rule is, that, under the provision in the Federal
Constitution that Congress shall have power to exercise
exclusive legislation in all cases whatsoever, over all places
purchased by the consent of the Legislature of the State
in which the same shall be, for the erection of specified
structures, when property is so purchased by the United
States with the consent of the Legislature of the State,
the Federal jurisdiction is exclusive of all State authority,
and land so purchased ipso facto falls within the exclusive
jurisdiction of the United States; and the reservation by
the State accompanying its consent that civil and criminal
process of the State may be served in the place purchased
I
234 OPINIONS OF THE ATTORNEY-GENERAL.
is not considered as interfering in any respect with the
supremacy of the United vStates over it, but is admitted to
prevent such place from becoming an asylum for fugitives
from justice. Commonwealth v. Clary, 8 Mass. 72.
The statutory provision as to the Commonwealth's re-
taining concurrent jusrisdiction for the execution of all
civil and criminal process is found in G. L., c. 1, § 7, but,
in order that the United States may possess exclusive legis-
lative power over the tract it must have acquired the tract
with the consent of the State. By G. L., c. 1, § 7, general
consent was given in the matter of marine hospitals, custom
offices, post offices, lighthouses, etc. There are many
instances where the Commonwealth, by legislation, has
consented to the acquisition of land of this Commonwealth.
Recent examples are: property in the town of Rutland, St.
1922, c. 409; Camp Devens, St. 1921, c. 456; land in South
Boston, Gen. St. 1919, c. 270.
As to the land in question, located at Leeds, in the city
of Northampton, the facts furnished me through your
department are simply to the effect that the ownership of
the land passed to the United States government as a gift
from the citizens of Northampton. It does not appear that
the land has been acquired with the consent of the Legis-
lature of this Commonwealth.
Accordingly, for a decisive opinion on the questions raised
by you, as to whether or not the statutory provisions relative
to the use of the air tank are effective, it would be necessary
to have full information as to the acquisition of the tract
by the Federal government.
jay r. benton, attorney-general. 235
City Ordinances — Approval of the Attorney General.
An ordinance of a city which has adopted Plan B as a plan of government, under
Gen. St. 1915, c. 267, is not subject to the requirements of G. L., c. 40, § 32,
and takes effect without the approval of the Attorney General.
You ask my opinion whether it is necessary to submit to '^°u^^o?o(^
me, for my approval, ordinances of the city of Cambridge. ^'*?923'^^*'
You state that the question has been raised in connection ^"f^^'^
with a complaint under an ordinance of the city of Cambridge
relating to traffic regulations passed and approved by the
mayor in 1917.
I have some doubt whether it is within my province to
give the opinion which you request, but I have concluded
that under the circumstances it is proper to do so.
G. L., c. 40, § 22, authorizes a city or town to make
ordinances or by-laws for the regulation of carriages and
vehicles used therein, except as otherwise provided in G. L.,
c. 90, § 18 (authorizing special regulations as to the speed
and use of motor vehicles). In view of this statute no
question can be made that the ordinance in question is
outside the scope of proper municipal legislation. The sole
question is whether or not it was invahd because the pro-
visions of G. L., c. 40, § 32, were not complied with. Said
section is as follows : —
Before a by-law takes effect it shall be approved by the attorney
general, and shall be pubhshed at least three times in one or more news-
papers, if any, published in the town, otherwise in one or more newspapers
pubUshed in the county; or instead of such publication, notice of the
by-laws shall be given by delivering a copy thereof at every occupied
dwelling or apartment in the town, and affidavits of the persons delivering
the said copies, filed with the town clerk, shall be conchisive evidence
of proper notice hereunder; provided, that any by-law in force upon May
sixteenth, nineteen hundred and four, shall not be subject to this section.
The requirement that a by-law, before taking effect, should
be approved by the Attorney General was made by an amend-
ment passed in 1904 (St. 1904, c. 344, § 1). Prior to that
236 OPINIONS OF THE ATTORNEY-GENERAL.
time the statutes required that by-laws should receive the
approval of the Superior Court. (See R. L., c. 25, § 26.)
There are certain statutory provisions under which the
contention may be made that statutes relating to town by-
laws should be construed to include city ordinances.
G. L., c. 4, § 7, cl. 22, provides: —
"Ordinance," as applied to cities, shall be synonymous with by-law.
G. L., c. 40, § 1, is as follows: —
Cities and towns shall be bodies corporate, and, except as otherwise
expressly provided, shall have the powers, exercise the privileges and be
subject to the duties and liabilities provided in the several acts establishing
them and in the acts relating thereto. Except as otherwise expressly
provided, cities shall have all the powers of towns and such additional
powers as are granted to them by their charters or by general or special
law, and all laws relative to towns shall apply to cities.
You state that, prior to 1915, the city of Cambridge was
governed under the old Cambridge charter, granted by St.
1891, c. 364, section 15 of which is, in part, as follows: —
The city council shall have power to make ordinances and to fix penal-
ties therein, as provided herein and by general law, which shall take effect
from the time therein limited, without the sanction or confirmation of
any coiu't or justice thereof. All city ordinances shall be duly pub-
lished, anfl in such newspaper or newspapers in said city as the city
council shall direct.
You state further that Cambridge, in 1915, adopted as
a new charter Plan B of Gen. St. 1915, c. 267. This chapter
contains general provisions and special provisions under
Plan B for the passage of ordinances by a city council,
and the approval of them by the mayor. (See pt. I, §§ 1^,
8, and 20-23; pt. Ill, §§ 4 and 8.) Pt. I, § 23, requires
proposed ordinances, except emergency measures, to be
published once before passage and once afterwards. Pt.
Ill, § 8, provides, in part, as follows: —
JAY R. BENTON, ATTORNEY-GENERAL. 237
Every order, ordinance, resolution and vote relative to the affairs of
the city, adopted or passed by the city council, shall be presented to the
mayor for his approval. If he approves it he shall sign it ; if he disapproves
it he shall return it, \vith his objections in writing, to the city council,
which shall enter his objections at large on its records, and again consider
it. If the city council, notwithstanding such disapproval of the mayor,
shall again pass such order, ordinance, resolution or vote by a two thirds
vote of all the members of the city council, it shall then be in force, but
such vote shall not be taken for seven days after its return to the citj''
council. Every such order, ordinance, resolution and vote shall be in
force if it is not returned by the mayor within ten days after it has been
presented to him.
Pt. I, § 11, provides that, upon the adoption of one of the
plans of government provided for in the act, "the provisions
of this act, so far as apphcable to the form of government
under the plan adopted by the city, shall supersede the
provisions of its charter and of the general and special laws
relating thereto and inconsistent herewith."
G. L., c. 40, § 32, is a law relative to towns. By G. L.,
c. 40, § 1, it is made applicable to cities, except as otherwise
expressly provided. In my opinion, the charter under
which the city of Cambridge is governed does otherwise
provide, and therefore section 32 is not applicable.
I am confirmed in this opinion by the case of Commonwealth
V. Davis, 140 Mass. 485. That was a complaint for violation
of an ordinance of the city of Boston. The defendant
contended that the ordinance was invalid because it had
not been recorded in the clerk's office, as required by Pub.
St., c. 27, § 21, providing that "before any by-law takes
effect it shall be approved by the Superior Court, or in ,
vacation by a justice thereof, and shall with such approval
be entered and recorded in the office of the clerk of the courts
in the county where the town is situated, or in the county
of Suffolk in the office of the clerk of the Superior Court
for civil business." The court held that this provision
applied onlj^ to the by-laws of towns, and by statutory
enactment to cities only so far as not inconsistent with
general or special provisions relating thereto, that the
238
OPINIONS OF THE ATTORNEY-GENERAL.
provisions were inconsistent with the special provisions
of the charter of Boston, and therefore were not appHcable.
It is true that in that case the charter expressly provided
that the city ordinances should take effect without the
sanction or confirmation of any court or other authority
whatsoever. The sections which I have referred to in
the statute constituting the charter of the city of Cambridge
seem to me also to make city ordinances effective when
passed and approved as therein provided.
To the Com-
missioner of
Public Health.
1923
August 20.
Master Plumbers — Registration — Non-Resident —
Building Department of the City of Boston.
A master plumber who has a regular place of business and performs plumbing
work by himself or by his journeymen may lawfully be registered under the
provisions of existing statutes, even if he is not a resident of the state.
You ask my opinion regarding a question of mixed law
and fact contained in a letter written by the building com-
missioner of Boston, to the secretary to the State Examiners
of Plumbers. The question is phrased in the letter as
follows : —
Three brothers, one of whom is a licensed master plumber, entered into
a partnership to perform plumbing. They i*egistered in the office of the
building department, the registration being signed by the brother who is
licensed as a master plumber but is not a resident of Boston, being a
resident of Chicago. The question is: In your opinion, can the building
department of the city of Boston recognize this registration as being in
accordance with the requirements of G. L., c. 142, § 3, and St. 1907,
c. 550, § 113?
St. 1907, c. 550, above referred to, has been in large part
amended by St. 1909, c. 536, and by later statutes. The
provisions regarding master plumbers, contained in these
earlier acts, are embodied in G. L., c. 142, § 3. In this
chapter a master plumber is defined as "a plumber having
a regular place of business and who, by himself or journey-
men plumbers in his employ, performs plumbing work."
JAY R. BENTON, ATTORNEY-GENERAL, 239
In section 3 it is provided that no person shall engage in the
business of a master plumber unless he is lawfully registered
or has been licensed.
It is not the province of the Attorney General to pass
upon questions of fact, but from the statement of facts
contained in the letter which embodies the question you
desire answered, it does not appear but that the registration
of the master plumber in question was properly made,
without fraud, and in accordance with the usual mode of
registration; and the matter which gives rise to the question
of a possible illegality relative to this registration appears
to be due only to the fact that at the time of such registration
the master plumber was not a resident of Boston but a
resident of Chicago, and is still a resident of Chicago,
although doing business in the city of Boston.
There is nothing in the provisions of the General Laws,
nor in any of the numerous acts dealing with master plumbers
previously enacted, which requires that a master plumber
shall be a resident of the city of Boston, or even of the
Commonwealth of Massachusetts, for the purpose of being
registered under the provisions of this and similar statutes.
It is required as a prerequisite of such registration that such
master plumber shall have a regular place of business and
perform plumbing work by himself or by his journeymen.
There is nothing in the statutes which tends to indicate that
a master plumber cannot carry on business in this Common-
wealth and still be a resident of a city outside the Common-
wealth. There would seem, therefore, no reason why the
building department of the city of Boston should not
recognize the registration of such a master plumber as is
described in your letter. The further fact, that the partners
of the master plumber are not themselves licensed master
plumbers, is of no special importance upon this aspect of
the matter, provided that the firm has one properly licensed
master plumber. See Burke v. Board of Health, 219 Mass.
219.
240
OPINIONS OF THE ATTORNEY-GENERAL.
To the Com-
missioner of
Insurance.
1923
September 6.
Insurance — Fraternal Benefit Society — Mortuary
Funds — Interest on Certain Loans.
A fraternal benefit society may not, under G. L., c. 176, place a portion of its
mortuary fund in a separate fund and then disburse it for expenses incidental
to the growth or strengthening ot the society.
Interest due upon money borrowed by a fraternal benefit society for its death fund
is an item of expense which, under G. L., c. 176, should be repaid from the
expense account of such society.
You have asked my opinion upon two questions relative
to the mortuary funds of fraternal benefit societies.
The first question is: "Whether or not the use of money
for expense purposes under such circumstances (i.e., those
set forth in the first and second paragraphs of your letter)
is authorized by the provisions of G. L., c. 176."
The circumstances referred to are stated in your letter to
be as follows : —
The Catholic Order of Foresters of Chicago, Illinois, is a foreign frater-
nal benefit society which is subject to the provisions of the G. L., c. 176.
During the year 1922, the society readjusted its mortuary assessment
rates, and, as a result of making this readjustment, transferred from its
mortuary fund to the surplus revenue fund $8,693,421.25. The money
transferred was money received apparently from assessments levied upon
the members for death purposes and the accretions of said fund. $160,000
of this money was transferred from the surplus revenue fund to a fund
called the readjustment fund, and said readjustment fund, to the amoimt
of $120,567.70, was used for paying the expenses of the readjustment.
G. L., c. 176, §§ 13 and 14, provide: —
Section 13. Any society may create, maintain, invest, disburse and
apply a death fund, any part of which may in accordance with the by-
laws of the society be designated and set apart as an emergency, a surplus
or other similar fund, and a disability fund. Such funds shall be held,
invested and disbursed for the use and benefit of the society, and no
member or beneficiary shall have or acquire individual rights therein,
or become entitled to any part thereof, except as provided in section
sixteen, seventeen or nineteen. The funds from which benefits shall be
paid shall be derived and the fund from which the expenses of the society
shall be defrayed may be derived from periodical or other payments by
the members of the society and accretions of said funds; provided, that
JAY R. BENTON, ATTORNEY-GENERAL. 241
no society shall be incorporated, and no society not authorized on January
first, nineteen hundred and twelve, to do business in the commonwealth
shall be admitted to transact business therein, which does not provide
for stated periodical contributions sufficient to meet the mortuary obli-
gations contracted, when valued upon the basis of the National Fraternal
Congress Table of Mortality as adopted by the National Fraternal Con-
gress August twenty-third, eighteen hundred and ninety-nine, or any
higher standard, with interest assumption not more than four per cent
per annum, except societies providing benefits for disability or death
from accident only.
Section 14. Every provision of the by-laws of the society for pay-
ment by members of such society, in whatever form made, shall distinctly
state the purposes of the same and the proportion thereof which may be
used for expenses, and no part of the money collected for mortuary or
disability purposes or the net accretions of either or any of said funds
shall be used for expenses.
The Attorney General, of course, does not undertake to
pass upon questions of fact, as such. The circumstances,
as you set them forth, indicate that the benefit society
had created a death fund, and by appropriate by-laws had
designated and set apart a portion of such death fund in a
surplus revenue fund, so called, and later created a re-
adjustment fund, so called, to which $120,567.70 of the
money previously placed in the surplus fund was removed
and paid out to defray the expenses incidental to a readjust-
ment of the assessment rates of the society, which was then
made.
Section 14, above quoted, states specifically that "no
part of the money collected for mortuary or disability
purposes or the net accretions of either or any of said funds
shall be used for expenses." This rule seems plain and
absolute. No difference is made by its terms between
ordinary expenses of management and extraordinary ex-
penses. The designation of part of the death fund as
separate funds, under the provisions of section 13, does not
disabuse the parts of the death fund so designated of their
inherent character as moneys collected for mortuary pur-
poses, and no such designation can free them from the
limitations imposed by section 14. The provisions of
242 OPINIONS OF THE ATTORNEY-GENERAL.
section 13, while authorizing the division of the death fund
into emergency and other funds, keep ahve and recapitulate
the existence of the mortuary fund from which benefits are
to be paid as a unit, and designate the fund from which
expenses are to be paid as a separate entity. The phrase
in section 13 concerning the different funds into which the
mortuary fund may be divided — "such funds shall be held,
invested and disbursed for the use and benefit of the society"
— does not divest the funds of their character as funds
applicable to the payment of benefits eventually, and permit
their being used to defray expenses. Moreover, all the
funds made out of the mortuary fund under section 13 are
charged with the special interest therein which may accrue
to members under the provisions of sections 16, 17 and 19.
It is apparent from reading together all the sections of
this chapter that the funds derived from a division of the
mortuary fund are all charged with the same limitations
as the original fund, and are intended by the statute to
constitute only reserve sections, as it were, of the original
fund. They all exist primarily to make sure the payment
of the death benefits and the prerogatives of the members
to which they later may become entitled under sections
16, 17 and 19, and they cannot be diverted from their
primary purpose to pay expenses of the society, either
usual or unusual. The words "disbursed for the use and
benefit of the society" (§13, line 5) do not signify a disburse-
ment for a purpose foreign to the one for which, as part of
the death fund, they were created. The payment of the
expenses of the society is not the purpose for which they were
created. A totally different mode of paying the expenses
of the society is indicated by the statute.
It has been specifically held that where the statutory
rule forbids the payment of expenses from funds collected
for or charged with the payment of death benefits, it is not
lawful to use such funds for expenses. Chicago Mutual
Life Ind. Assn. v. Hunt, 127 III. 257. Nor for the expense
involved in a campaign to strengthen the society by ob-
JAY R. BENTON, ATTORNEY-GENERAL. 243
taining new members. WoJf v. Germania Ins. Co., 149
Wis. 576.
To permit a benefit society to place part of its mortuary
fund in a separate fund under another name, and to disburse
this portion of the mortuary fund, so set aside, for expenses
incidental to the growth or the strengthening of the society,
would be to open the road for the withdrawal of all the
funds primarily intended to secure the payment of claims,
and to permit their disbursement in an entirely different
manner, which might be highly prejudicial to the rights of
members and defeat the entire purpose of the statute in this
respect. The statute makes no distinction between usual
expenses and unusuall expenses such as those incurred in
arranging for an adjustment of rates.
There is nothing in the recent case of Delancy v. Grand
Lodge A. 0. U. W., 244 Mass. 556, which modifies or affects
the principle here involved.
I must therefore answer your first question to the effect
that the use of money for expense purposes, under the
circumstances which you describe, is not authorized by
G. L., c. 176.
Your second question is: "Whether a fraternal benefit
society which borrows money for its death fund has the
right, under the statute, to pay from its death fund interest
for the use of said money, or is said interest an expense which
should be disbursed from the expense account."
It is not contemplated, under the provisions of G. L.,
c. 176, that the death fund shall be depleted except by pay-
ments to beneficiaries, for whose benefit it was established.
Although the borrowing of money to prevent the depletion
of the death fund in some emergency indirectly enures to
the benefit of the immediate recipients of payments from
the fund, the principal of the fund will suffer by paying
for the temporary help, to the detriment of future claim
holders. The cost of borrowing money is an expense.
The statute is aimed to prevent the depletion of the death
fund by expenses incurred by the society, for whatever
244
OPINIONS OF THE ATTORNEY-GENERAL.
purposes and with whatever good intentions. It contem-
plates the discharge of such indebtedness by an entirely
separate and independent fund. Under such circumstances
as your question discloses, payment of interest is an expense,
and it should not be paid out of the death fund.
Gasoline — Necessaries of Life — Construction of
Statute — Special Commission on the Neces-
saries of Life.
The words "necessaries of life" mean literally things necessary to sustain life, and
naturally connote commodities of prime importance, such as food, fuel,
clothing and housing.
The words "necessaries of life," as used in Mass. Const. Amend. XLVII, have a
broad and elastic meaning, the intention being that the powers thereby given
to the Legislature should extend to such things as may be fairly termed "neces-
saries," from time to time, with the changing needs of the community.
The question whether gasoline was intended by the Legislature to be included
in the class of "commodities which are necessaries of life," as to which the
special Commission on the Necessaries of Life was given certain powers and
duties by St. 1921, c. 325, is a question of interpretation, involving a consider-
ation of the language used and of the objects sought to be accomplished in
that and other statutes where the same words have been used.
Gasoline, while it is an important factor in the transportation of necessaries of
life, is not itself a "necessary of life," within the meaning of St. 1921, c. 325.
Whether the sale of gasoline is a "business which relates to or affects" necessaries
of life, under St. 1921, c. 325, is a question of fact for the Commission to
determine.
To the Com-
missioner on
the Necessaries
of Life.
1923
September 7.
You request my opinion as to whether or not gasoline
is a necessary of life, under the provisions of St. 1921, c. 325,
as extended by St. 1922, c. 343, and St. 1923, c. 320, which
creates and defines the powers and duties of your commission.
In answering your question it is necessary to study the
history of the passage of the present and preceding acts.
A special Commission on the Necessaries of Life was
established by Gen. St. 1919, c. 341. This enactment was
preceded by Gen. St. 1917, c. 342, known as the "Common-
wealth Defence Act of 1917," and by an amendment to the
Constitution, in both of which provision was made for the
exercise of control over the supply of necessaries of hfe.
JAY R. BENTON, ATTORNEY-GENERAL. 245
Accordingly, reference should first be made to these earlier
provisions and acts done thereunder.
Gen. St. 1917, c. 342, approved May 26, 1917, contained
the following provision : —
Section 23. Whenever tlie governor, with the advice and consent
of the council, shall determine that an emergency has arisen in regard
to the cost, supply, production, or distribution of food or other necessaries
of life in this commonwealth, he may ascertain the amount of food, or
other necessaries of life within the commonwealth; the amount of land
and labor available for the production of food; the means of producing
within or of obtaining without the commonwealth food or other necessaries
of life as the situation demands; and the facilities for the distribution of
the same, and may publish any data obtained relating to the cost or supply
of such food or other necessaries, and the means of producing or of ob-
taining or distributing the same. In making the said investigation he
may compel the attendance of witnesses and the production of documents,
and may examine the books and papers of individuals, firms, associations
and corporations producing or dealing in food or other necessaries of
life, and he may compel the co-operation of all officers, boards, commis-
sions and departments of the commonwealth having information that
may assist him in making the said investigation.
The purpose of the statute was declared by section 1 to
be "to provide for the safety, defence and welfare of the
commonwealth and for the discharge of its duties toward the
national defence as one of the United States." By section
6 the Governor was authorized, whenever he believed it
necessary or expedient, to take possession of and to fix
minimum and maximum prices for certain kinds of property
therein enumerated, including land, machinery, means of
conveyance, provisions, fuel and other means of propulsion.
These were not described as necessaries of life. By section
12 the Governor was authorized, with the approval of the
Council, to confer on other persons the powers to do in his
name whatever might be necessary to carry into effect
the powers which the act conferred upon him.
After the passage of this statute a "Fuel Director" was
appointed, to have supervision over the cost, supply and
distribution of coal within the Commonwealth. (See VI
246 OPINIONS OF THE ATTORNEY-GENERAL.
Op. Atty. Gen. 63.) There was also appointed a "Com-
mittee of Public Safety," which may have exercised some
of the powers conferred by section 23. So far as I am
advised, however, no executive action was ever taken under
this statute to investigate or to regulate the cost, supply or
distribution of gasoline.
Mass. Const. Amend. XLVII was submitted to the people
October 11, 1917, and was adopted November 6, 1917.
This amendment is as follows : —
The maintenance and distribution at reasonable rates, during time of
war, public exigency, emergency or distress, of a sufficient supply of food
and other common necessaries of life and the providing of shelter, are
public functions, and the commonwealth and the cities and towns therein
may take and may provide the same for their inhabitants in such manner
as the general court shall determine.
By Gen. St. 1919, c. 341, there was established for one
year from August 1, 1919, a special commission to be known
as the Commission on the Necessaries of Life. By section
1 of said statute it was provided that : —
It shall be the duty of said commission to study and investigate the
circumstances affecting the prices of the commodities which are necessaries
of life. The commission may inquire into all matters relating to the
production, transportation, distribution and sale of the said commodities,
and into all facts and circumstances relating to the cost of production,
wholesale and retail prices and the methods pursued in the conduct of
the business of any persons, firms or corporations engaged in the pro-
duction, transportation, or sale of the said commodities, or of any busi-
ness which relates to or affects the same.
This statute was amended by Gen. St. 1919, c. 365, by
adding, after the provision quoted above, the following : —
It shall also be the duty of said commission to study and investigate
the circumstances affecting the charges for rent of property used for
living quarters or for the production of necessaries of life, and in such
investigation the commission may inquire into all matters relating to
charges for rent.
JAY R. BENTON, ATTORNEY-GENERAL. 247
St. 1920, c. 610, purports to continue to January 1, 1922,
those provisions of the Commonwealth Defence Act of
1917 "relating to the appointment, duties, authority and
powers of a fuel administrator." (See VI Op. Atty. Gen.
63.)
St. 1920, c. 628, extended the term of service of the special
Commission on the Necessaries of Life to March 1, 1921.
It contains, also, a further provision as follows : — ■
Section 5. In the public emergency which exists, and which may
exist for an indefinite period, and in order to insure an adequate supply
of the necessaries of life for the people of the commonwealth, including
housing facilities, the provisions of the Commonwealth Defence Act of
nineteen hundred and seventeen, being chapter three hundred and forty-
two of the General Acts of nineteen hundred and seventeen, relating to
the appointment, duties, authority and powers of a food administrator,
are hereby made operative until March first, nineteen hundred and twenty-
one. If the said emergency continues, the governor is hereby authorized
to appoint, under the provisions of said chapter, one or more admin-
istrators as he may deem the emergency requires, or to designate the
commission on the necessaries of life to act in that capacity.
St. 1921, c. 325, estabhshed for the term of one year from
May 1, 1921, a special commission to be known as the Com-
mission on the Necessaries of Life, of which one member is
to act as chairman and fuel administrator. Section 2
provides as follows : —
It shall be the duty of the commission to study and investigate the
circumstances affecting the prices of fuel and other commodities which
are necessaries of life. The commission may inquire into all matters
relating to the production, transportation, distribution and sale of the
said commodities, and into all facts and circumstances relating to the
cost of production, wholesale and retail prices and the method pursued
in the conduct of the business of any persons, firms or corporations en-
gaged in the production, transportation, or sale of the said commodities,
or of any business which relates to or affects the same. It shall also be
the duty of the said commission to study and investigate the circumstances
affecting the charges for rent of property used for living quarters, and in
such investigation the commission may inquire into all matters relating
to charges for rent.
248 OPINIONS OF THE ATTORNEY-GENERAL.
The term of service of this commission was extended for
one year by St. 1922, c. 343, and was again extended to
May 1, 1924, by St. 1923, c. 320.
Reference should also be made to Res. 1922, c. 50, pro-
viding, in part, as follows : —
Resolved, That the special coininission on tlie necessaries of life be
authorized and directed to inquire into the subject of the retail distri-
bution and sale of gasoline and refined petroleum products, with special
reference to the means and methods whereby competition in such sale and
distribution has been substantially eliminated and conditions of monopoly
established. . , .
The attorney general is hereby directed to place at the disposal of the
commission the services of an assistant attorney general for the purposes
of the investigation herein provided for. For said purposes, the com-
mission may exercise all the powers conferred upon it by chapter three
hundred and twenty-five of the acts of nineteen hundred and twenty-one
and chapter three hundred and forty-three of the acts of the current
year, and the said products shall, for the purposes of this investigation
be deemed "necessaries of life" within the meaning of said chapters three
hundred and twenty-five and three hundred and forty-three. The com-
mission shall report the results of its investigation to the general court
not later than the second Wednesday in January, nineteen hundred and
twenty-three, with drafts of such proposed legislation as may be necessary
to carry its recommendations into effect.
Acting under this provision, the Commission did make
an investigation into the distribution and sale of gasoline
as directed in the resolve, but it has never made any other
investigation of that subject. The fact that the Legislature
here expressly provided that gasoline, "for the purposes
of this investigation," should be deemed a necessary of
life furnishes some argument that in the 1921 statute they
did not intend that gasoline should be included as a necessary
of Hfe.
Prior to the Commonwealth Defence Act of 1917, the
words "necessaries of life" were used in the so-called "Du-
buque Law," St. 1898, c. 549, § 1 (G. L., c. 225, § 1), providing
for equitable process after judgment in cases where the
judgment is founded on a claim for necessaries of life. There
JAY R. BENTON, ATTORNEY-GENERAL. 249
is no decision of the court construing the words "necessaries
of Ufe" in a case arising under this statute which throws
hght upon the present question.
The words "necessaries of life," taken literally, must mean
things necessary to sustain life. They naturally connote
commodities of prime importance, such as food, fuel,
clothing and housing. (See VI Op. Atty. Gen. 251.) The
word "necessaries," alone, may have that restricted meaning.
International Textbook Co. v. Connolly, 206 N. Y. 188.
As applied to an infant, the term "necessaries" has been
given a broader meaning, so that it includes articles of
utility suitable to the station in life which the person
occupies. Dams v. Caldwell, 12 Gush. 512; Raynes v.
Bennett, 114 Mass. 424; Conant v. Burnham, 133 Mass.
503; Hamilton v. Lane, 138 Mass. 358; Jordan Marsh Co.
V. Cohen, 242 Mass. 245, 249. But, under the insolvency
statute, it was held by Ghief Justice Shaw that the word
was to be construed strictly and in reference to the purpose
for which it was introduced. Prentice v. Richards, 8 Gray,
226. In admiralty law, necessaries are held to be articles
needed to enable a ship to prosecute the particular business
in -vvhich she is engaged. The Penn, 273 Fed. 990, 991.
Under the Lever Act (Act of August 10, 1917, c. 53, as
amended by Act of October 22, 1919, c. 80) Congress
provided for the exercise of control over foods, feeds, wearing
apparel, fertilizer and certain implements, which in the act
were called necessaries. It was held that under this act
"necessaries" included only the articles specified in the act.
United States v. American Woolen Co., 265 Fed. 404; cf.
C. A. Wood cfc Co. V. Lockwood, 264 Fed. 453; Merritt v.
United States, 264 Fed. 870. I believe that under this act
no attempt was made to exercise control of the production,
distribution or sale of gasohne.
In dealing with the question of the meaning of "necessaries
of life," as used in the instant act, it is apparent that little
help can be derived from precedents established by judicial
decisions, because the words must be defined in the light
250 OPINIONS OF THE ATTORNEY-GENERAL.
of the purpose for which the legislation was enacted, and, as
so used, they have a different connotation from that which
has been given to them in cases which have heretofore come
before the courts.
The question whether a given article is a necessary is
said to be largely a question of fact; but the tribunal de-
termining that question is entitled to instruction to aid it
in such determination, and also to a ruling when, as a matter
of law, articles of a certain kind do not come within the class
of necessaries. Davis v. Caldwell, 12 Cush. 513; Raynes v.
Bennett, 114 Mass. 424; Hamilton v. Lane, 138 Mass. 358;
Jordan Marsh Co. v. Cohen, 242 Mass. 245, 249.
Mass. Cont. Amend. XLVII has already been referred to
and quoted in full. An examination of the records of the
debates of the Constitutional Convention, which presented
this amendment to the people, is not particularly illumi-
nating in regard to gasoline. The amendment, as it was
originally introduced in the Convention in 1917, when the
general thoughts of the Convention were directed primarily
to the necessities of war, was referred to as a public trading
amendment, and was as follows : —
The General Court may authorize the Commonwealth to take by pur-
chase or otherwise foodstuffs, fuel, ice and other necessaries of life, and
to sell the same to the inhabitants thereof or to any county, city, town
or other municipal corporation therein; and may authorize municipalities
to buy and to sell to their inhabitants such necessaries of life, and to harvest
and manufacture ice. The General Court may authorize the establish-
ment, maintenance and operation by the Commonwealth, cities and
towns, of markets, docks, fuel and coal yards, elevators, warehouses,
canneries, slaughter-houses and other like means for producing, selling
and distributing the necessaries of life.
The long and strenuous debate which ensued, and which
was carried on chiefly by Mr. Clapp, of Lexington, Mr.
Anderson, of Brookline, Mr. Washburn, of Worcester, Mr.
Pillsbury, of Wellesley, and Mr. Lomasney, of Boston, was
devoted primarily to a discussion of the general propriety
of the Commonwealth's engaging in various kinds of business
JAY R. BENTON, ATTORNEY-GENERAL. 251
enterprises and as to what should constitute a pubhc emer-
gency. Very little attention, if any, was paid specifically
to the discussion of what were necessaries of life. Originally,
it was attempted to enumerate and define necessaries by
the use of such words as foodstuffs, fuel, ice, housing, feed,
etc., the intention of some members being, apparently,
from their remarks, to confine the authority given by the
amendment to the exact articles enumerated. If this had
been finally done the situation would have been as it was
under the Federal act, where Congress had defined ''necessa-
ries" by enumerating certain commodities, and the Federal
courts held that those commodities, and those only, could
be regarded as necessaries of life under the Federal act.
There was, however, opposition to this limitation from the
outset, and from the debates it appears to have been the
consensus of opinion that the power of the Legislature
should not be so curtailed, but that scope should be left
for it to deal with all things which might be fairly termed
"necessaries," from time to time, with the changing needs
of the community, and which could not then be in the mind
of the Convention. In the debates it was admitted by every
one that the term "necessaries of life" was an undefined
term, open to debate and decision at any period in the life
of the State. In the early stages of the discussion Hon.
George W. Anderson, now a judge of the United States
Circuit Court of Appeals, suggested in one of his speeches
to the Convention (Debates, C. C. vol. I, 642) —
We have limited the first provision to foodstuffs, fuel, ice and other
necessaries. What may be a necessary T agree is a matter sometimes
open to debate. I know of no method by which you can avoid that
possible difficulty in the constitutional grant of power. I think it should
be left for the Legislature to determine what is necessary, naming it in
the legislation enacted.
After a very considerable amount of debate, however,
which was mostly directed toward the proposed trading
activities of the Commonwealth, the trading feature was
252 OPINIONS OF THE ATTORNEY-GENERAL.
gradually dropped out of sight, more or less by common
consent. At length the amendment in its present form was
adopted.
In the whole course of the debate I cannot find anything
which throws any light upon the intention of the Convention
as to what should or should not be considered necessaries,
other than the common agreement that food, fuel, clothing,
ice and housing were undoubtedly necessaries, the admission
that there were other probable necessaries of life, and the
apparent intention of the Convention to leave the amend-
ment so elastic as not to bind the judgment of the Legislature
in future times with new economic developments before it.
But the question on which my opinion is asked is not
whether gasoline is a necessary of life within the broad and
elastic meaning of those words as used in the amendment,
but whether it was intended by the Legislature to be included
in the class of ''commodities which are necessaries of life,"
as to which your commission was given certain powers and
duties by St. 1921, c, 325. This question of interpretation
of the legislative will involves a consideration of the language
used and of the objects sought to be accomplished in that
and other statutes where the same words have been used.
Moore v. Stoddard, 206 Mass. 395, 399; Commonwealth v.
Dee, 222 Mass. 184; Duggan v. Bay State St. Rij. Co., 230
Mass. 370, 374. The meaning of the words used in a statute
is a question of law. Boston v. Boston Elevated Ry. Co.,
213 Mass. 407, 411; Selectmen of Natick v. Boston & Albany
R. R. Co., 210 Mass. 229, 232.
The ordinary necessaries of life undoubtedly are food,
fuel, clothing and housing facilities. Food, fuel and housing
facilities are expressly mentioned by the Legislature.
In determining whether a commodity is a necessary of
life careful distinction must be made between necessaries
of life and the means of producing, transporting and dis-
tributing such necessaries. Such means, though vital
factors in sustaining life, cannot be regarded as necessaries
of life within the purview of the statute. Were this not
JAY R. BENTON, ATTORNEY-GENERAL. 253
SO, there would be, in our present condition of social life,
very few commodities which could not be classed as necessa-
ries of hfe. Such result was not intended by the act. It is
a known fact, of which perhaps judicial notice may be taken,
that transportation of food by motor trucks is a vital factor
in keeping the markets of cities properly supplied. Gasoline
is a necessary element in such transportation but is no more
necessary than the motor truck. Plainly, motor trucks are
not necessaries of life within the purview of the statute,
nor are farming implements, though the soil cannot be tilled
and farm produce raised without them. I am therefore
of the opinion that gasoline, while it is an important factor
in the transportation of necessaries of life, is not itself a
"necessary of life" within the meaning of the statute.
Your powers are not, however, limited to investigating the
prices of necessaries of life. Under the statute it is your
duty to inquire "into all matters relating to the production,
transportation, distribution and sale of the said commodities,
and into all facts and circumstances relating to the cost of
production, wholesale and retail prices, and the method
pursued in the conduct of the business of any persons, firms
or corporations engaged in the production, transportation,
or sale of the said commodities, or of any business which
relates to or affects the same."
Under certain circumstances the sale of gasoline may be
a "business which relates to or affects" necessaries of life
or may be a factor in afTecting the prices of such com-
modities. Whether or not that condition exists is a question
of fact for you to determine. If it does, I am of the opinion
that you may investigate the price of gasoline in so far as it
affects necessaries of life.
254
OPINIONS OF THE ATTORNEY-GENERAL.
To the Com-
missioner of
Insurance.
1923
September 13.
Insurance — Broker's License — Fee — War Services
— Induction from a Draft Board — Discharge.
An applicant for an insurance broker's license under G. L., c. 175, § 166, is not
exempt from paying the fee prescribed by said section, on the ground that he
has "served" in the Army of the United States, if he was inducted from a draft
board, but was discharged before being mustered into the Federal service.
An "induction" from the draft is not the equivalent of "service" in the Army.
To have "served" in the Army a person must not only have been inducted from
the jurisdiction of a draft board, but must also have been through the further
process of being "mustered into" or enrolled in the service.
A "discharge from the draft" is not intended to be the equivalent of an honorable
discharge for those who have actually been mustered into the service of the
United States.
You request my opinion as to whether a certain appHcant
for an insurance broker's license under G. L., c. 175, § 166,
is exempt from paying the fee prescribed by said section,
on the ground that the apphcant in question comes within
that clause of section 166 which provides that —
No fee for a license issued hereunder shall be required of any soldier,
sailor or marine resident in this commonwealth who has served in the
army or navy of the United States in time of war or insurrection and
received an honorable discharge therefrom or release from active duty
therein, if he presents to the commissioner satisfactory evidence of his
identity.
It appears from your letter and from the copy of a
document annexed thereto, which has been presented to
you by said applicant as evidence of his right to exemption
from the payment of the said fee, that the applicant was
inducted into the mihtary service of the United States
from the jurisdiction of the Local Board for Division 9,
Philadelphia, on Nov. 11, 1918, and was discharged from
the military service of the United States ''by reason of
cancellation of induction call" on the same day.
The document presented by the applicant is entitled
"Discharge from Draft." It bears on its face these words: -
Note. — This form will be used for discharge of aliens and alien enemies
and of men rejected on account of physical unfitness, dependency, . . .
JAY R. BENTON, ATTORNEY-GENERAL. 255
The answer to your question turns upon what is meant
by "served" in the army of the United States, as used in
G. L., e. 175, § 166. I am of the opinion that the words
used in the document entitled "Discharge from Draft,"
presented by the applicant, which state that he "was in-
ducted into the service from the jurisdiction of the Local
Board for Division 9, Philadelphia," are not of themselves
sufficient to establish the fact that the applicant "served
in the army of the United States," within the meaning of the
statute under consideration.
An "induction" from the draft is not the equivalent of
"service" in the army. To have "served" in the army a
person must not only have been inducted from the juris-
diction of a draft board, but must also have been through
the further process of being "mustered into" or enrolled
in the service. After induction from the draft board the
person so inducted is to a certain extent under martial law,
so far that he may be treated as a deserter if he does not
properly report thereafter, but he has yet to undergo a
physical examination, and is subject to discharge without
actual enrollment, for physical disability or a number of
other causes which may be found to exist. French v.
Sangerville, 55 Me. 69; Mahoney v. Lincolnville, 56 Me. 450;
Reed v. Sharon, 35 Conn. 191; Bickford v. Brooksville, 55
Me. 89.
In construing the soldiers' bonus law the Attorney-General
has ruled that the provisions of Gen. St. 1919, c. 283,
granting a war bonus to men honorably discharged from
the service of the United States in the World War, do not
apply to drafted men who were passed by the draft board,
sent to army camps and there discharged because physically
disqualified or for misconduct or on similar grounds. See
V Op. Atty. Gen. 405. In that opinion a former Attorney-
General used the following language : —
In my judgment, ... it cannot be said that the class of men to which
you refer was enlisted in or had been enrolled in or had been mustered
256 OPINIONS OF THE ATTORNEY-GENERAL.
into the Federal service, within the meaning of this statute. These men
were never in the army of the United States to a sufficient extent to be
discharged from it. In my opinion, it cannot be said that they performed
"services ... in the army ... of the United States" of the character
intended by this statute to be recognized. Accordingly, I must advise
you that men of the class to which you refer are not entitled to the benefits
of the statute.
This department has also ruled that the exemption from
all poll taxes granted by Gen. St. 1919, c. 9, does not include
persons summoned in the draft, who reported for duty,
but were discharged before they were mustered into the
Federal service. V Op. Atty. Gen. 601.
A similar conclusion was reached by the Supreme Court
of Rhode Island in Bannister v. Soldiers' Bonus Board, 43
R. I. 346.
In the "Discharge from Draft" which the present applicant
presents to you it is evident, from the "note" which is made
a part of the form, that it is not intended to be the equivalent
of an honorable discharge for those who have actually been
mustered into the service of the United States, but is a form
used for those who have presented themselves as drafted
men but have not actually been enrolled because of some
disqualification. It is apparent, also, from the wording
of the body of the document, that the applicant was dis-
charged upon the very day of his induction, and that the
reason for his discharge was the "cancellation of induction
call." There is nothing in the document entitled "Discharge
from Draft" which indicates that the applicant was mustered
into or enrolled or served in the Army of the United States
so as to bring him within the provisions of G. L., c. 175,
§ 166, which exempts those who have served as soldiers in
the Army of the United States, and have been honorably
discharged therefrom or released from active duty therein,
from paying a fee for a license to engage in the insurance
business.
jay r. benton, attorney-general. 257
Teachers' Retirement Board — Membership — Pay-
ment OF Back Assessments in Instalments —
Payments in Anticipation of Membership.
A rule of the Teachers' Retirement Board permitting a teacher who served prior
to July 1, 1914, to join the association, paying his back assessments in instal-
ments, is not consistent with law, and therefore is invalid.
G. L., c. 32, § 7, par. (3), defines the only terms upon which teachers who served
in the public schools of Massachusetts prior to July 1, 1914, are permitted
to become members of the State Teachers' Retirement Association at any time
before attaining the age of seventy; and said statute contains no provision
whereby an applicant for membership may make payments of back assess-
ments in instalments.
No authority is granted by the statute creating the Retirement Board which
permits the board to receive deposits from applicants in anticipation of
membership.
You desire my opinion upon the following questions : — m?ssk>nE°^"
Education.
1923
1. Did the Teachers' Retirement Board have the right to adopt a rule September i8.
allowing a teacher who served prior to July 1, 1914, to join the association,
paying his back assessments in instalments?
2. If the Retirement Board has not the right to permit teachers to join
the Retirement Association under the provisions of the aforesaid rule,
may the board allow teachers to make deposits in anticipation of member-
ship, enrolling these teachers as members when they have accumulated
in the retirement fund an amount equal to their back assessments with
interest?
1. G. L., c. 32, § 7, par. (3), provides as follows: —
Any teacher who entered the service of the public schools before July
first, nineteen hundred and fourteen, who has not become a member of
the association, may hereafter, before attaining the age of seventy, upon
written application to the board, become a member of the association by
paying an amount equal to the total assessments, together with regular
interest thereon, which he would have paid if he had joined the association
on September thirtieth, nineteen hundred and fourteen.
G. L., c. 32, § 8, par. (2), provides:
The board may make by-laws and regulations consistent with law.
At a meeting of the Retirement Board held on October 8,
1919, the board adopted the following rule: —
258 OPINIONS OF THE ATTORNEY-GENERAL.
Any teacher joining the Retirement Association under the provisions
of paragraph (3) of section 7 of the retirement law, may pay his back
assessments with interest in equal monthly instalments for a period of
not exceeding five years. The monthly instalments shall not be less than
the regular monthly assessment, and they shall be deducted from the
salary of the member by the employing school committee as directed
by the Retirement Board. The teacher may at any time make additional
payments reducing the balance due the annuity fund. Interest on the
balance due after each payment is made shall be figured at the rate of
4% per annum and shall be paid within three months from the date of
payment of the last instalment.
To be valid and effective this rule must, in the language
of the statute, be "consistent with law." The statute
[G. L., c. 32, § 7, par. (3)] defines the only terms upon which
teachers who served in the public schools of Massachusetts
prior to July 1, 1914, are permitted to become members of
the State Teachers' Retirement Association at any time
before attaining the age of seventy. Under this statute
such membership can only be acquired by making written
application to the board and "by paying an amount equal
to the total assessments, together with regular interest
thereon," which the applicant would have paid if he had
joined the association on September 30, 1914. These
requirements are conditions precedent to membership, and
there is nothing in the statute which permits an applicant
to make such payments in instalments, nor does the statute
confer authority upon the Retirement Board to receive
such payments from an applicant in instalments. Member-
ship can only be acquired by paying the entire amount
called for. Since the statute does not expressly confer the
right to make and receive such assessments by instalments,
it is to be presumed that no such right exists, and that it
was the legislative intention to exclude such method of
acquiring membership. It accordingly follows that the
rule of the Retirement Board is not "consistent with law,"
and therefore is invalid.
2. The same reasons given in my answer to your first
question govern in answering your second question. No
JAY R. BENTON, ATTORNEY-GENERAL. 259
authority is granted by the statute creating the Retirement
Board which permits it to receive deposits from appHcants
in anticipation of membership. It is obvious that many
comphcated situations would arise if the board should act
as a depositary for such instalments. In the absence,
therefore, of express authority conferring upon the Retire-
ment Association this right, I am of the opinion that your
second question must likewise be answered in the negative.
Metropolitan District Commission — Jurisdiction —
Private Ways adjoining Roads constructed by the
Commission — Rights of Owners of Abutting Land
to Egress and Ingress — Regulation.
The Metropolitan District Commission has the power, as to roads laid out under
G. L., c. 92, § 33, to prohibit the construction of private ways connecting
with such roads by abutting owners.
The Commisson has not the right to prohibit the construction of a private way
reasonably necessarj' for access to the land of an abutting owner connecting
with a boulevard or roadway laid out under the provisions of G. L., c. 92, § 35.
If the owner of an abutting piece of land has been given by the Commonwealth,
by deed, the right of free access to a "reservation" roadway or to a "boulevard,"
this right of free access cannot be limited by the Commission.
The Commission may make reasonable rules and regulations regulating the location
of a private way which is to eonnect abutting land with a "reservation" road-
way or "boulevard."
An abutting owner having a right of free access to a public way, not limited by
the terms of a deed, is entitled to a connecting way for all purposes for which
he may lawfully use his land.
A regulation restricting the use of such a private way, so as to interfere with any
purpose for which the land of the abutting owner might lawfully be used, is
not a reasonable regulation.
You have requested my opinion relative to the jurisdiction Jouta?, nfstHct
of your Commission over the construction of private ways Commission.
for the egress and ingress of owners of land adjoining roads
constructed by your Commission.
There are two classes of roads which may be constructed
under the terms of our statutes by your Commission. The
first of these consists of roads constructed under the pro-
visions of G. L., c. 92, § 33, formerly St. 1893, c. 407, and
1923
September 19.
260 " OPINIONS OF THE ATTORNEY-GENERAL.
consists, in general, of roads laid out upon or bordering upon
spaces taken by the Commission for exercise and recreation.
In the absence of particular facts relative to any one of such
roads, these roads may fairly be said not to be public ways
{Gero V. Metropolitan Park Commission, 232 Mass. 389);
and in the absence of an easement given by the Common-
wealth to some adjoining landowner, the adjoining land-
owner will not have any right of way from his land to such
road.
The second class of roads over which this Commission
has jurisdiction are those constructed under G. L., c. 92,
§ 35, formerly St. 1894, c. 288, commonly called "boule-
vards," which are constructed for the particular purpose
of connecting various parts of the park system with towns
in which any of the parks are situated. As to these boule-
vards the Commission is given the same powers which it has
in regard to reservations, and additional powers such as
those exercised by other public bodies over public ways.
These boulevards constructed under section 35 are public
ways. Whitney v. Commonwealth, 190 Mass. 531.
It is a settled principle of our law that abutting owners
have a right of way for reasonable needs from their lands
to the public way adjoining. The abutting owner's right
of access to and from the public way is as much his property
as his right to the soil within his boundary lines. With
regard, therefore, to owners of land abutting on the roads
called "boulevards," made under section 35, your Com-
mission has not the power to prevent the construction by
the abutting landowners of ways leading from their land to
such boulevards. If at any time easements granting such
right of connection with the highway to the owners of abut-
ting lands have been given by easements in deeds from the
Commonwealth, the rights of the abutting owners are
additionally confirmed thereby.
Although the Commission has not the power to prohibit
the exercise by the abutting owner of his right of access
to and from a public way constructed under section 35, yet
JAY R. BENTON, ATTORNEY-GENERAL. 261
it has the power to regulate the manner in which he shall
use his right of access.
By G. L., c. 92, § 37, the Commission has authority to
"make rules and regulations for the government and use
of reservations or boulevards under its care." The right
of the abutting owner is subject to this general provision
for the regulation of the roads under the control of your
Commission. Your Commission may make reasonable
regulations concerning the location, construction and
maintenance of such private ways as may be built by the
abutting owners, as far as relates to their connection with
the public ways. Conditions change from time to time,
and what may be a reasonable regulation at one period
may not be considered reasonable at another. There is
wide latitude for the discretion of the Commission in this
respect, but there is, in general, a right to make reasonable
regulations as to the location of the private way with a view
to the safety of the public traveling on the public way.
To summarize: Your Commission has the power, as to
roads laid out under G. L., c. 92, § 33, to prohibit the con-
struction of private ways connecting with such roads by
abutting owners. Your Commission has not the right to
prohibit the construction of a private way reasonably
necessary for access to the land of an abutting owner con-
necting with a boulevard or roadway laid out under the
provisions of G. L., c. 92, § 35. If by deed the owner of
an abutting piece of land has been given by the Common-
wealth the right of free access to a ''reservation" roadway
or to a boulevard," this right of free access cannot be limited
by the Commission ; but if the terms of the Commonwealth's
deed do not give the right to construct more than one
connecting way, the Commission, by its reasonable rules
and regulations, may regulate the location of the private
way which is to connect the abutting land. The abutting
owner on a "boulevard" or the owner having a right of
free access to such public way, unlimited by the terms of
a deed, is entitled to a connecting way for all purposes for
262
OPINIONS OP THE ATTOENEY-GENERAL.
which he may lawfully use his land in the situation in which
it is, and a regulation restricting the use of such private way,
so as to interfere with any purpose for which the land of the
abutting owner might lawfully be used, would not be a
reasonable regulation.
Great Ponds — Title — Control — Public Rights —
Access — Fishing — Prescriptive Rights — Colo-
nial Ordinance of 1641-1647.
Great ponds are ponds containing in their natural state more than ten acres.
Title to great ponds, not granted to towns or appropriated to private persons prior
to 1647, is in the Commonwealth for the benefit of the public.
Public rights in great ponds are not limited to those mentioned in the Colonial
Ordinance: such ponds are devoted to such public uses as the progress of
civilization and the increasing wants of the community properly demand.
Except during the period from 1835 to 1867, prescriptive rights in great ponds
could not be acquired against the Commonwealth.
The Commonwealth and the public may acquire prescriptive rights in ponds
privately owned.
Control of great ponds is in the Legislature.
There is now no public right to fish in certain great ponds containing twenty acres
or less.
Other public rights are not affected by the statute relative to fishing.
The public has a right to reasonable means of access to ponds containing more than
twenty acres, for the purpose of fishing.
Thejpublic, to gain access to great ponds for the purpose of fowling, and possibly
for some other rights, where there are no public lands, roads or rights of way,
may pass and repass on foot over unimproved and unenclosed lands.
To the Com-
missioner of
Conservation.
1923
October 1.
You have requested my opinion relative to certain public
rights in great ponds.
The foundation of public rights in great ponds lies in the
Colonial Ordinance of 1641-1647 (see Ancient Charters,
148; Body of Liberties, sec. 16; edition of the colony laws
of 1660), which provides: —
Sec. 2. Every inhabitant who is an householder shall have free fishing
and fowling in any great ponds, bays, coves and rivers, so far as the sea
ebbs and flows within the precincts of the town where they dwell, unless
the freemen of the same town, or the general court, have otherwise ap-
propriated them: provided, that no town shall appropriate to any par-
ticular person or persons, any great pond, containing more than ten acres
JAY R. BENTON, ATTORNEY-GENERAL. 263
of land, and that no man shall come upon another's propriety without
their leave, otherwise than as hereafter expressed.
The which clearly to determine; Sect. 3. It is declared, that in all
creeks, coves, and other places about and upon salt water, where the sea
ebbs and flows, the proprietor, of the land adjoining shall have propriety
to the low water mark, where the sea doth not ebb above a hundred rods,
and not more wheresoever it ebbs further: provided, that such proprietor
shall not by this liberty have power to stop or hinder the passage of boats
or other vessels, in or through any sea, creeks, or coves, to other men's
houses or lands.
Sect. 4. And for great ponds lying in common, though within the
bounds of some town, it shall be free for any man to fish and fowl there,
and may pass and repass on foot through any man's propriety for that
end, so they trespass not upon any man's corn or meadow.
By this ordinance great ponds were defined as ponds
containing more than ten acres, created by the natural
formation of the land at a particular place, and were set
apart and devoted to the public use. West Roxhury v.
Stoddard, 7 Allen, 158; Commonwealth v. Tiffany, 119 Mass.
300; Attorney General v. Herrick, 190 Mass. 307; Sprague
V. Minon, 202 Mass. 467, 468. The fact that the area of
a great pond has been increased by a dam or by other
artificial means does not change its character as a great
pond. The test is the area covered by the pond in its earlier,
natural condition. Commonwealth v. Tiffany, 119 Mass. 300.
Title to great ponds, both to the waters and to the soil
underneath, which had not before the year 1647 been granted
to a town or been appropriated to private persons, is in the
Commonwealth for the benefit of the public, and if a pond
had before that date been granted to a town and had not
passed to a private person, the legal title remains in the
town but the beneficial right is in the public. Commonwealth
V. Roxhury, 9 Gray, 451 ; West Roxhury v. Stoddard, 7 Allen,
158; Watuppa Reservoir Co. v. Fall River, 147 Mass. 548;
Attorney General v. Revere Copper Co., 152 Mass. 444.
Though fishing and fowling are the only public rights
enumerated in the Colonial Ordinance, the mention of them
did not exclude other rights, and the uses which the public
264 OPINIONS OF THE ATTORNEY-GENERAL.
might make of great ponds not appropriated to private
persons prior to 1647 were not limited to those named in
the ordinance or in the Body of Liberties, or to such as
could be made of them at the time. The great ponds, like
any other property, can be applied to such uses as from
time to time they become capable of. They are appropri-
ated to such public uses as the progress of civilization and
the increasing wants of the community properly demand.
Fishing, fowling, boating, bathing, skating or riding upon
the ice, taking water for domestic or agricultural purposes
or for use in the arts, and the cutting and taking of ice,
are public rights which are free to all persons so far as they
do not interfere with the reasonable use of the ponds by
others or with the public right, except in cases where the
Legislature has otherwise directed. West Roxbury v.
Stoddard, 7 Allen, 158, 171; Hittinger v. Eames, 121 Mass.
539; Slater v. Gunn, 170 Mass. 509, 514; Attorney General
V. Herrick, 190 Mass. 307; Butler v. Attorney General, 195
Mass. 79, 83.
The public rights are common to all, and the permission
to "householders," in the Colonial Ordinance, never has
been construed as a prohibition to those who were not
householders. Slater v. Gunn, 170 Mass. 509, 514. An
unreasonable use of great ponds, not authorized by the
Legislature, which is an interference with their reasonable
use by the public, is a public wrong for which an indictment
or information would lie. Potter v. Howe, 141 Mass. 357,
360. The littoral proprietors of land upon great ponds which
had not been appropriated to private use have no peculiar
rights in the waters or in the land under them, except by
grant of the Legislature or by prescription from which a
grant is to be implied. Subject to those exceptions, there
are no private rights of property in great ponds. Hittinger
V. Eames, 121 Mass. 539, 546; Gage v. Steinkrauss, 131
Mass. 222; Watuppa Reservoir Co. v. Fall River, 147 Mass.
548, 557.
Prescription did not run against the king except by
JAY R. BENTON, ATTORNEY-GENERAL. 265
statute, and this rule of common law prevailed in Massa-
chusetts until the enactment of the Revised Statutes in 1835,
chapter 119, section 12. Under that statute a title by
disseizin could be acquired against the Commonwealth as
readily as against a private person, and prescriptive rights
in the real estate of the Commonwealth, including great
ponds, could be acquired. But by St. 1867, c. 275, now
G. L., c. 260, § 31, it was provided that the statute of
limitations on real actions brought by the Commonwealth
should not apply to "any property, right, title or interest
of the commonwealth below high water mark or in the
great ponds." Since the statute of 1867 the statute of
limitations cannot be set up in bar of a real action brought
by the Commonwealth to recover a great pond, unless
the defendant had acquired a title by disseizin after the
passage of the Revised Statutes in 1835, chapter 119, section
12, and prior to the enactment of St. 1867, c. 275. Attorney
General v. Revere Copper Co., 152 Mass. 444, 452; Sklaroff
V. Commonwealth, 236 Mass. 87, 88.
Both the Commonwealth and the public may, however,
by prescription acquire rights in ponds which are privately
owned, and rights of way to ponds, but the possession which
operates such a result must be not only actual but open,
adverse, exclusive and uninterrupted. Coolidge v. Learned,
8 Pick. 504; Deerfield v. Connecticut River R.R., 144 Mass.
325; Attorneij General v. Ahhott, 154 Mass. 323, 328; At-
torney General v. Vineyard Grove Co., 181 Mass. 507; At-
torney General v. Ellis, 198 Mass. 91, 98. If the use upon
which the claim to a prescriptive right is based was with
the permission, express or implied, of the successive owners
of the land or pond, and was not adverse and under a claim
of right, no rights by prescription are acquired. Slater v.
Gunn, 170 Mass. 509, 511. If a right of way is claimed
by dedication, it must be shown that there was an intention
on the part of the owner to dedicate the roadway to the
public, and an acceptance on the part of the public author-
266 OPINIONS OF THE ATTORNEY-GENERAL.
ities. Hay den v. Stone, 112 Mass. 346, 350; Common-
wealth V. Coupe, 128 Mass. 63; Slater v. Gunn, supra, p. 511.
The control of great ponds, in the pubHc interest, is in
the Legislature, which represents the public. It may
regulate and change these public rights, or take them away
altogether, to serve some paramount pubhc interest. It
may by a proper grant make them the subject of private
property. Commonwealth v. Alger, 7 Cush. 53; Hittinger
V. Eames, 121 Mass. 539; Gage v. Steinkrauss, 131 Mass.
222; Sprague v. Minon, 195 Mass. 581, 583; Lynnfield v.
Peabody, 219 Mass. 322, 329.
In Watuppa Reservoir Co. v. Fall River, 147 Mass. 548,
555, the court said : —
These rights and powers, both the jus yrivatum and the jus publicum,
to the extent to which they existed either in the king or Parhament, vested
in the Colonial and Provincial government, and after the Revolution
vested in the Commonwealth, including all the prerogatives and rights
of the crown, and powers of regulation which had at any time previously
been held and exercised by the government of England.
And at page 557 of that case the court said : —
The power of the Legislature to regulate the rights of fishing, and other
public rights, is very broad. Thus it may regulate the time and manner
of fishing in the sea within its limits, and may grant exclusive rights of
fishing. Instances of the exercise of this power in regard to the great
ponds are found in the various statutes leasing such ponds to individuals,
which have been held to be valid, although they grant exclusive rights
to individuals and exclude others from the exercise of rights to the use of
the ponds to which they were before entitled. Commonwealth v. Vincent,
108 Mass. 441. Commonwealth v. Tiffany, 119 Mass. 300. Cole v.
Eastham, 133 Mass. 65.
When the legislature grants certain rights it makes sub-
ordinate all other public rights which are inconsistent with
the exercise of the rights granted. Fay v. Salem cfe Danvers
Aqueduct Co., Ill Mass. 27; Attorney General v. Revere
Copper Co., 152 Mass. 444; Rockport v. Webster, 174 Mass.
385; Gardner Water Co. v. Gardner, 185 Mass. 190, 194.
JAY R. BENTON, ATTORNEY-GENERAL. 267
It is a well established rule that, in determining the scope
and effect of such grants from the government to the subject,
the terms of the grant are to be taken most strongly against
the grantee and in favor of the grantor, reversing the common
rule as between individuals. Cleaveland v. Norton, 6 Cush.
380, 383; Commonwealth v. Roxbury, 9 Gray, 451, 492;
Martin v. Waddell, 16 Pet. 367, 411.
Acting under this power, the Legislature restricted the
public right of fishing in great ponds. G. L., c. 130, § 24
(formerly St. 1869, c. 384, § 8), provides: —
The fishery of a pond, the area of which is more than twenty acres,
shall be public, except as hereinafter provided; and aU persons shall, for
the purpose of fishing, be allowed reasonable means of access thereto.
G. L., c. 130, § 32 (formerly St. 1869, c. 384, § 7, and R. L.,
c. 91, § 23), provides: —
The riparian proprietors of any pond, other than a great pond, and the
proprietors of any pond or parts of a pond created by artificial flowing
shall have exclusive control of the fisheries therein.
G. L., c. 130, § 33 (formerly St. 1869, c. 384, § 13, and
R. L., c. 91, § 24), provides: —
A pond other than a great pond, bounded in part by land belonging to
the commonwealth or to a county, city or town shall become the exclusive
property of the other proprietors as to the fisheries therein only upon
payment to the state treasurer, or county, city or town treasurer of a just
compensation for their respective rights therein, to be determined . . .
(in a prescribed manner).
St. 1869, c. 384, §§ 7 and 13, and R. L., c. 91, §§ 23 and
24, apply to "any pond the area of which is not more than
twenty acres." Though G. L., c. 130, §§ 32 and 33, seem
to apply to any pond other than a great pond, they must
be construed in the light of section 24 of that act and in the
light of the previous enactments. So construed, these two
sections apply to ponds which are not more than twenty
acres in area. Were this not so and were it held that these
2(58 OPINIONS OF THE ATTORNEY-GENERAL.
provisions apply only to ponds which are not great ponds,
thereby meaning ponds ten acres or less in area, the pro-
visions of these two sections would be of no effect, because
the public, even in the absence of statutes, has no rights
in ponds which are not great ponds. The effect of G. L.,
c. 130, §§ 24, 32 and 33, is to cut off the right of the pubhc
to fish in great ponds which are twenty acres or less in area
where the pond is entirely surrounded by land of private
riparian proprietors, and also in ponds twenty acres or less
in area where the surrounding land is owned by individuals
and the Commonwealth or a county, city or town, and
compensation has been paid in accordance with the pro-
visions of G. L., c. 130, § 33. See also IV Op. Atty. Gen.
639, 641. These sections do not diminish the fishing rights
of the public in great ponds of more than twenty acres in
area. Neither do they curtail other public rights in great
ponds of less than twenty acres in area, nor in any way affect
the conception of a great pond as one containing in its
natural state more than ten acres. See G. L., c. 91, § 35.
G. L., c. 130, § 24, provides that, /or the purpose of fishing
all persons shall be allowed "reasonable means of access
to ponds more than twenty acres in area." What constitutes
"reasonable means of access" is a question of fact. The
right to "reasonable means" was first granted by St. 1869,
c. 384. Prior to that act the means of access to great ponds
for the purpose of fishing was, and the right of access at the
present time for the purpose of exercising other public rights,
is, such as were granted by the Colonial Ordinance, which
provided that the public "may pass and repass on foot
through any man's propriety ... so they trespass not
upon any man's corn or meadow."
In Commonwealth v. Alger, 7 Cush. 53, 70, the court said: —
The word "propriety" is nearly, if not precise!}', equivalent to "prop-
erty." It imports not an easement, an incorporeal right, license, or
privilege, but a jus in re, a real or proprietary title to, and interest in,
the soil itself, in contra-distinction to a usufruct, or an uncertain and
precarious interest.
JAY R. BENTON, ATTORNEY-GENERAL. 269
lii Slater v. Gunn, 170 Mass. 509, 512, the court said: —
The question whether the pubhc may cross private lands and if so to
what extent, for the purpose of gaining access to them, does not seem to
have been passed upon, though there are various dicta in our decisions
in regard to it which tend to show that the right of access is Umited to
cases where it can be exercised without trespassing on the lands of others.
Coolidge v. Williatns, 4 Mass. 140, 144. West Roxbury v. Stoddard, 7
Allen, 158, 171. Paine v. Woods, 108 Mass. 160, 173. Rowell v. Doyle,
131 Mass. 474.
At pages 514-516 the court said: —
At the tune when the ordinances were adopted the territory to which
they applied was ahnost wholly a wilderness. There naturally would be
few public ways leading to great ponds. If there was any common land
upon them it might be remote and inconvenient. The population was
small and scattered. Many, if not most, of the ponds would be sur-
rounded ^vith wild lands. No harm would be done by permitting persons
to cross these lands for the purpose of gaining access to the ponds for
fishing and fowling, which were the uses for which they were principally
resorted to. In view of all these circumstances, it was provided by the
ordinance of 1649 that any man who desired to gain access to the ponds
for these purposes should be free to "pass and repass on foot through any
man's propriety for that end, so they trespass not upon any man's corn
or meadow." This, we think, was intended to limit the passing and re-
passing to unimproved and unenclosed lands lying on the ponds, and is to
be construed with reference to the condition of things existing when the
ordinance was adopted. It did not create a right of way over such lands
on the part of the public, but relieved persons crossing them in the manner
and for the purposes named from liability as trespassers, to the end that
the public reservation should in no case altogether fail. If it is regarded
as establishing a rule of property, the rule is not an inflexible and un-
varying one, but it is to be applied with a due regard to existing conditions.
As public means of access to the ponds multiply, and the land about the
ponds becomes more valuable, it may well be held that a rule which
was adapted to earlier and different conditions should suffer a correspond-
ing modification in its application. In cases where there are no convenient
means of access, fishermen and hunters, and possibly others, may still
pass and repass on foot through wild lands lying upon them for the pur-
pose of gaining access to great ponds. But it hardly could have been
intended, we thinlc, that as the uses of the ponds increased the right to
cross and recross the unimproved and unenclosed lands lying upon them
270 OPINIONS OF THE ATTORNEY-GENERAL.
should increase also, and that such land should be liable to be subjected
to a constantly increasing burden. As the ponds became more valuable
for the public use, and were resorted to more by the public, means of
access naturally would be provided by the public authorities, and there
would be less instead of more necessity for crossing private lands. . . .
the Legislature has provided . . . that all persons shall be allowed reason-
able means of access to great ponds of more than twenty acres for the
purpose of fishing without rendering themselves liable as trespassers. . . .
If it had been understood that under the ordinance the public had a right
of access to great ponds over private lands, this legislation would have
been unnecessary, except so far as it related to the size of the ponds.
The case of Slater v. Gunn, supra, appears to be the only
case decided in Massachusetts which deals directly with the
question of the means of access to great ponds. That case
holds that "in cases where there are no convenient means
of access, fishermen and hunters, and possibly others, may
still pass and repass on foot through wild lands lying upon
them, for the purpose of gaining access to great ponds."
I am accordingly of the opinion that the public, in order
to gain access to great ponds for the purpose of exercising
the right of fowling, and possibly some other rights which
reasonably may be supposed to have been contemplated
at the time of the adoption of the Colonial Ordinance, may,
where there are no public lands or public roads or rights of
way acquired by eminent domain, purchase, dedication or
prescription, pass and repass on foot over unimproved and
unenclosed lands without rendering themselves liable as
trespassers. With respect to fishing in ponds of more than
twenty acres, the public is by statute afforded a reasonable
means of access. Where there are no means of access over
unimproved and unenclosed lands and no public lands,
public ways or acquired rights of way, persons may in a
reasonable manner pass over other lands of proprietors
bordering on such ponds, for the purpose of gaining access
thereto for fishing, without rendering themselves liable as
trespassers. The Commonwealth or any municipality
may, of course, by eminent domain take sufficient land to
lay out a public way to any great pond. Except for the
JAY R. BENTON, ATTORNEY-GENERAL. 271
foregoing, the public has no right of access across private
lands for the purpose of exercising public rights in great
ponds.
To summarize:
(1) Great ponds are ponds created by the natural forma-
tion of the land at a particular place, containing, in their
natural condition, more than ten acres.
(2) Title to great ponds which had not before the year
1647 been granted to a town or been appropriated to private
persons is in the Commonwealth for the benefit of the
public.
(3) Public rights in great ponds which are not appropri-
ated to private persons are not limited to those mentioned
in the Colonial Ordinance. Such ponds are devoted to such
public uses as the progress of civilization and the increasing
wants of the community properly demand,
(4) The public rights are common to all persons.
(5) Except during the period from 1835 to 1867, pre-
scriptive rights in great ponds could not be acquired against
the Conmionwealth.
(6) The Commonwealth and the public may acquire
prescriptive rights in ponds which are privately owned.
(7) The control of great ponds is in the Legislature, which
may regulate and change the public rights or take them away
altogether.
(8) There is now no public right to fish in ponds containing
twenty acres or less, where such ponds are entirely sur-
rounded by land of private riparian owners, or where the
surrounding land is owned by private persons and the
Commonwealth or a county, city or town, and compensation
has been paid by the private owners in accordance with the
statutory provisions.
(9) The other public rights in great ponds, whether more
or less than twenty acres in area, are not affected by the
statute relative to fishing and exist in full force, except as
they have otherwise been restricted by the Legislature.
(10) In ponds containing more than twenty acres in area,
272
OPINIONS OF THE ATTORNEY-GENERAL.
the public, in addition to such rights as it has in the pond
itself, has a right to reasonable means of access to such
ponds for the purpose of fishing.
(11) In exercising the foregoing right the public may,
where there are no means of access over unimproved and
unenclosed land and no public lands or public roads or rights
of way, pass in a reasonable manner over other lands of
proprietors bordering on such ponds.
(12) The public, in order to gain access to great ponds
for the purpose of exercising the right of fowling, and
possibly some other rights which reasonably may be sup-
posed to have been contemplated at the time of the adoption
of the Colonial Ordinance, may, where there are no public
lands, public roads or rights of way, pass and repass on foot
over unimproved and unenclosed lands without rendering
themselves liable as trespassers.
Commissioner of Public Works — Registrar of
Motor Vehicles — Approval of Increases in
Salaries of Motor Vehicle Investigators.
The approval of the Commissioner of Public Works should follow the determi-
nation of increases in salaries of investigators and examiners appointed by
the Registrar of Motor Vehicles before such increases are finally determined.
To the Com-
mission on Ad-
niiniatration '
and Finance.
1923
October 25.
You have requested my opinion as to whether or not the
approval of the Commissioner of Public Works is necessary
in the matter of certain proposed increases in the salaries
of motor vehicle investigators, which have been submitted
to you by the Registrar of Motor Vehicles.
G. L., c. 16, § 4, provides as follows: —
The commissioner shall be the executive and administrative head of the
department. He shall approve all contracts made bj^ either division, and
may require any of the expenditures of either division to be submitted to
him for approval. He may appoint, assign to divisions, transfer and re-
move such officials and employees as tlie work of the department may re-
quire, and fix their compensations.
JAY K. BENTON, ATTORNEY-GENERAL. 273
G. L., c. 90, § 29, reads as follows: —
The registrar shall appoint competent persons to act as investigators
and examiners, may remove them for cause, and may determine their
compensation and terms of service and define their duties. . . .
In order to arrive at a determination of your question,
which is raised because of the apparent conflict between
the two statutory provisions quoted above, it is necessary
to examine the history and language of the statutes which
created the Department of Pubhc Works in its present
form, and which passed on to the Registrar of Motor
Vehicles the powers and duties of the former Massachusetts
Highway Commission.
By adopting Mass. Const. Amend. LXVI the people of
the State provided that —
On or before Januaiy first, nineteen hundred twenty-one, the executive
and administrative work of the commonwealth shall be organized in not
more than twenty departments, in one of which every executive and ad-
ministrative office, board and commission, except those officers serving
directly under the governor or the council, shall be placed. Such depart-
ments shall be under such supervision and regulation as the general court
may from time to time prescribe by law.
Pursuant to this mandate, the General Court passed an
act in 1919 to organize in departments the executive and
administrative functions of the Commonwealth, and this
act, sometimes referred to as the "consolidation act," was
Gen. St. 1919, c. 350.
By section 111 the Massachusetts Highway Commission
and the Commission on Waterways and Public Lands were
abolished and were succeeded by the Department of Public
Works. G. L., c. 16, § 1, the instant statute, provides: —
There shall be a department of public works, consisting of a division of
highways and a division of waterways and public lands.
Section 2 provides for the appointment of a commissioner
and four associates to supervise and control the department.
274 OPINIONS OF THE ATTORNEY-GENERAL.
Section 3 provides that the Governor shall appoint two of
the associate commissioners to have charge of the Division
of Highways, and the other two to have charge of the
Division of Waterways and Public Lands.
By virtue of this statute, which was orginally enacted as
Gen. St. 1919, c. 350, pt. Ill, the commission formerly
known as the Massachusetts Highway Commission was
merged in the new department, and, as the act of 1919
specifically stated, all its rights, duties, powers and ob-
Ugations were transferred to and are to be exercised by the
Department of Public Works. The provisions of G. L.,
c. 16, are merely a codification of the original act of 1919
creating such Department of Public Works. In like manner
the provisions for the creation and appointment of a Regis-
trar of Motor Vehicles, to be appointed by the Commissioner
of Public Works, were first enacted in the same chapter.
Gen. St. 1919, c. 350, and are there in the identical words of
G. L., c. 16, § 4, except that the powers and duties of the
Registrar are described and fixed in these words in section
115 of Gen. St. 1919, c. 350: —
The registrar of motor vehicles shall have, exercise and perform all
the rights, powers, duties and obligations of the Massachusetts highway
commission relative to motor vehicles and to the operation thereof, as
defined by chapter five hundred and thirty-four of the acts of nineteen
hundred and nine, and acts in amendment thereof and addition thereto.
Any person aggrieved by a regulation, ruUng or decision of said registrar
may, within ten days thereafter, appeal ... to the commissioners of
the division of highways . . .
Provisions similar to those in the earlier act, for appeal
from rulings and regulations made by the Registrar to the
commissioners of the Division of Highways, appear in
various sections of G. L., c. 90.
This same act which abolished the former jurisdiction
of the Massachusetts Highway Commission over motor
vehicles created the office of Registrar, created the Depart-
ment of Public Works, gave the Commissioner of Public
Works the power to fix the compensation of officials and
JAY E. BENTON, ATTORNEY-GENERAL. 275
employees of the division, as well as to remove and to
transfer from one division to another any of such employees
(Gen. St. 1919, c. 350, § 114), and this in addition to the
power given him to appoint and remove the Registrar.
The Registrar, though given broad powers under the act
of 1919, was subject to a review of his decisions by the new
Division of Highways, as he still is under G. L., c. 90. His
powers and duties are defined to be those of the former
Massachusetts Highway Commission. Since the enactment
of the statute of 1919 creating the Department of Public
Works, the Registrar has been in practice treated as a sub-
division of the Division of Highways.
If we seek to construe the law concerning the jurisdiction
of the Commissioner of Pubhc Works over the salaries of
the employees of the Registrar, in view of the fact that the
provisions relating thereto were originally all part of the
same act, and not, as now, codified into separate chapters,
we may more easily arrive at a determination of the legis-
lative intention in framing the clauses under discussion.
The original act of 1919, which created both the Com-
missioner of Public Works and the Registrar, gave to the
Registrar the powers of the former Highway Commission
under St. 1909, c. 534, as amended by subsequent legislation.
It is true that St. 1909, c. 534, gave to the Highway Com-
missioners the power to appoint and remove investigators
and examiners and to fix their compensation in essentially
the same language as is used in G. L., c. 90, § 29, and their
fixation of compensation was not then reviewable by any
other official, nor had it become so by later enactments.
However, the very act which transferred their powers to
the Registrar embodied within itself the creation of the new
Department of Public Works, two new divisions and the
new office of Registrar, all manifestly intended to be under
the Commissioner's supervision as regards the expenditures
of their offices and the compensation of their employees.
It is obvious from an inspection of Gen. St. 1919, c. 350,
pt. Ill, division 18, that the power to supervise salaries
276 OPINIONS OF THE ATTORNEY-GENERAL.
was given to the Commissioner as to both the divisions
of his department, and that the office of Registrar, also
created by division 18, was not intended by the Legislature
to be an office wholly separate and distinct from the newly
created Department of Public Works, but was intended
to be limited by the other provisions of division 18, and to
be subject, in the exercise of powers relative to employees'
salaries, to the general provision of the division of the
statute, in section 115, giving to the Commissioner the
general oversight of and right to approve all matters per-
taining to the compensation of the employees of the various
officials mentioned in division 18 of the statute.
While it is true that the former Massachusetts Highway
Commission had the power to fix the compensation of their
employees, nevertheless, in view of the fact that the act
of 1919, which conferred their power upon the Registrar,
created a supervisory official who had authority to oversee
matters of compensation relative to employees, it seems
that it is necessary to construe the act of 1919 as by its
very terms withholding from the Registrar this particular
power which the Highway Commission previously had, but
which, under the intention of the new act, neither their
successor, the Highway Division, nor the Waterways
Division was to possess any longer. The fact that in process
of codifying the laws the subject-matter of the act of 1919
was separated into two distinct chapters is responsible
for the apparent conflict; but when read together, as they
were originallj^ written, the meaning and intent of the
Legislature are plain.
To construe the statute as establishing one office, among
all those created by the statute, which alone should be
above the authority of the executive head with respect to
salaries, would seem to subvert the manifest intention
of the Legislature in passing this act, which was to centralize
in the hands of one responsible official, the Commissioner,
the ultimate authority over all the other officials and em-
ployees mentioned in this division of the statute, for the
JAY R. BENTON, ATTORNEY-GENERAL. 277
purpose of bringing the whole group into harmony as respects
salaries and duties, correlative to each other. The power
of the Commissioner indicated in the act of 1919 in this
respect is generally to be exercised by a power of change
or veto over the acts of the subordinate executives, leaving
them, as in the case of the Registrar, power of initial move-
ment in the matter.
A study of the history of the enactment of the so-called
"consohdation act" and its codification in the General Laws
clearly indicates that it was the conception of both the
joint committee on administration and commissions, which
prepared the reorganization act, and the General Court,
which enacted it, to secure centralization of responsibility.
"What was required was a scheme for the establishment
of better order in the administration of the affairs of
the executive branch of the State government, leaving the
correction of mistaken details to the future. Upon the
Governor rests the duty to select the proper personnel,
and upon the officials he appoints the duty to see that the
machinery which the Legislature has provided is intelligently
operated." A very thorough statement of the history of
the consolidation act is to be found in the August, 1919,
number of the Massachusetts Law Quarterly, at page 366,
prepared by Fitz-Henry Smith, Jr., Esq., House chairman
of the joint committee on administration and commissions,
which prepared the reorganization bill.
In view of the foregoing, in my judgment, the approval
of the Conmiissioner of Public Works should follow the
determination of compensation of investigators and ex-
aminers appointed by the Registrar of Motor Vehicles.
In connection with this opinion I might add that it was
clear to the Legislature that matters might arise, after the
statute was placed upon the books, where certain provisions
were in apparent conflict, and therefore it was provided by
Gen. St. 1919, c. 350, § 10, that —
In all cases where a question arises between departments or officers or
boards thereof as to their respective jurisdiction or powers, or where
278
OPINIONS OF THE ATTORNEY-GENERAL.
departments, or officers or boards thereof, issue conflicting orders or make
conflicting rules and regulations, the governor and council shall, on appeal
of any such department or any person affected thereby, have jurisdiction
to determine the question, and to order any such order, rule or regulation
amended or annulled; provided, that nothing herein contained shall be
construed to deprive any person of the right to pursue any other lawful
remedy. The time within which such appeal may be taken shall be fixed
by the governor and council.
In the codification this provision was changed to read as
follows (G. L., c. 30, § 5) : —
In all cases where a question arises between executive or administrative
departments, or officers or boards thereof, as to their respective juris-
dictions or powers, or where such departments, or officers or boards
thereof, issue conflicting orders or make conflicting rules and regulations,
the governor and council may, on appeal by any such department or
by any person affected thereby, determine the question, and order any
such order, rule or regulation amended or annulled; provided, that this
section shall not deprive any person of the right to pursue any other lawful
remedy. The time within which such appeal may be taken shall be fixed
by the governor and council.
Metropolitan District Commission — Land bordering
ON Mystic Lakes — Easement.
By a continuous uninterrupted user an easement by prescription has been acquired
in land bordering on the Mystic Lakes for the maintenance of a structure
used as a boat club, and a right of way thereto.
To the Metro-
politan District
Commission.
1923
October 27.
You have requested my opinion upon certain matters
relative to land under the control of the Metropolitan
District Commission bordering on the Mystic Lakes in
Medford.
It appears from your letter that the city of Charlestown,
by virtue of St. 1860, c. 217, entitled "An Act for supplying
the city of Charlestown with pure water," in consideration
of the payment of a certain sum of money, acquired from
the owners of land bordering the upper Mystic Lake, and
lying between the two lakes, an easement of flowing the land
JAY R. BENTON, ATTORNEY-GENERAL. 279
of the owners by a certain dam, and an easement providing
for a right of way over the land and the occupancy of the
land, limited to a right of way and occupancy for the specific
purposes of the said act, and a further right of way over
another strip of the owner's land near by, limited so as to
be "only for the purpose of enabling said city to make
necessary repaiis upon the said conduit (then upon said
land or to be placed there), and to such acts as may be
necessary for the preservation, examination and use and
reconstruction thereof (that is, of the conduit), and for no
other purposes whatever," — the words in parentheses
not being in the indenture. The owners expressly retain
in the indenture their own rights in the land and the lake
for all purposes not in conflict with the Commonwealth's
use, and their rights to use the pond for boating and other
purposes. It was also provided in the indenture that if
the grantee did not maintain the aqueduct for the purposes
of the act, or if the aqueduct and the water works were
discontinued or not maintained, then, that easement should
cease and determine. The rights acquired under this in-
denture have vested in the MetropoUtan District Com-
mission by the operation of various subsequent statutes, and
takings of these easements thereunder, and have been so
vested since 1895. The mere fact that water from the lakes
has not actually been used for some years for water supply
purposes, and is not at the present time in a condition to
be used, is not of itself such a discontinuance of the main-
tenance of the aqueduct and water works as would work an
abandonment thereof so as to determine the easements.
The actual easements which vested in the Commission
in 1895 were limited in their scope to the purposes of the act
of 1860, and the repair and general maintenance of the
conduit referred to in the indenture. The purposes for
which land might be taken and held were described by the
act. The city of Boston was authorized to "take and hold
by purchase, or otherwise, lands and real estate necessary
for the erecting, laying and maintaining, and may erect.
280 OPINIONS OF THE ATTORNEY-GENERAL.
lay and maintain, such aqueducts, pipes, reservoirs, em-
bankments, water-ways, drains or other structures as may
be necessary or convenient to convey said water into, and
for the use of, the said city of Charlestown." And the
general purpose of the act was described as being "the
supplying of the city of Charlestown with pure water."
In other words, the easements acquired under the indenture
could be used only for purposes connected with supplying
water for Charlestown.'
The grantee of the easements, and its successors, did not
acquire any right, as against the owner of the fee, to erect
or maintain structures for purposes unconnected with
supplying water to Charlestown. It did not acquire bj^ the
indenture the right to maintain or to permit others to main-
tain a structure for use as a boat club on the land or in the
lake, or to occupy the land or lake for boating, nor did it
acquire by the indenture any right of way over the lands
for itself or for others, to pass and repass to a structure
maintained as a boat club, or for any other purpose uncon-
nected with the use of the lake as a source of water supply.
It did not acquire under the indenture any right to park
automobiles, or to .permit others so to do, on the lands,
except in necessary connection with the maintenance of
the water supply.
It follows, then, that in 1900 the Commission did not
have such an easement under the indenture that they could
use any building on the land for boating or permit others
to use such a building for such a purpose. I assume, from
the facts stated in your letter, that the use made of the
structure, of the land and of the pond and of the right of
way, for the purposes of the boat club, was without the
permission of the owner of the fee at all times subsequent
to 1900. If the fact be otherwise, and these uses were
permissive, and not, as your letter indicates, adverse to
the owner of the servient tenement, the Commission and
the Commonwealth are in no better position than they were
in 1900. Assuming the uses to have been adverse, then the
JAY R. BENTON, ATTORNEY-GENERAL. 281
owners of the fee could have prevented, by a resort to equity,
the exercise by the Ucensees of the permission given to them
by the Commission in its letter of 1900, and could have
prevented the remodeling and use of the building by the
Commission's licensees under the permission given in the
letters of the Commission of May 18, 1900, May 4, 1904,
and March 7, 1907, and might have prohibited the passage
of automobiles and their parking upon the lands, as was
subsequently the usage after the letters of the Commission
of May 4, 1904, and March 7, 1907, and the vote of the
Commission of September 29, 1920. All the acts which
were then done relative to the boat club, and the use of the
land by automobiles going to and from the boat club, were
plainly in excess of any easement which had been acquired
over the servient tenement, were adverse to the owner of
the fee, and were not within the rights vested in the Com-
mission by the indenture or the subsequent taking. The
Commission could not itself so use the land, nor could it
give or transfer to any licensee any right so to use the land.
The use made of the land for the purpose of maintaining
a boat club, beginning with the year 1900, was open and
continuous. Such use as was made at that time by the
permission of the Commission of a right of way over the
land for the purposes of the boat club was also open, and
has been continuous and, in the same manner, adverse to
the owner of the fee. I am of the opinion that, since these
uses have continued uninterrupted by the owner of the fee
during the period since 1900, the Commonwealth or the
boat club, or both, have acquired an easement by pre-
scription, as against the owner of the fee, to use the land and
the pond and to maintain a structure for the purposes of
a boating club, and to pass and repass over the land for
purposes of access to the boat club, to the general extent
which such passing was practiced in 1900. Attorney General
V. Ellis, 198 Mass. 91. If any use of the land or passage
over the land has been made within the past twenty years
which has unposed a materially different or heavier burden
282 OPINIONS OF THE ATTORNEY-GENERAL.
upon the servient tenement than did the usages in practice
twenty years ago, such materially different or heavier
usage has not yet given rise to any prescriptive right, and
the Commonwealth and its licensees are continuing such
usage adversely to the owner of the fee, and, under the terms
of the indenture, the owner of the fee may prohibit them.
Whether or not the Commonwealth has, as against the
owners of the fee, acquired easements in the land, the
Commission has authority, as a commission, to permit the
use of the lands for any lawful purpose not necessarily in-
consistent with the maintenance of the aqueduct, the water
works and the existence of the lakes as a possible water
supply, subject to its determination by the owner of the
fee if such use exceed any easement in such lands which
the Commonwealth has acquired by actual grant or by
prescription.
The fact that a greater use of the servient tenement is
made than is authorized by the easement, unless necessarily
destructive of the character of the easement itself, does not
determine or lessen the easement which was originally
actually granted. The excessive use may be prohibited
by injunction by the owner of the fee, but the excessive
use will not destroy the easement as originally granted.
Mendell v. Delano, 7 Met. 176; Cowell v. Thayer, 5 Met.
253; Roby v. New York Central R.R., 142 N. Y. 176. The
adverse user described in your letter does not appear to have
been of a character which would affect the existence of the
easement which was originally granted by the indenture.
The propositions above set forth answer the first two
questions in your letter to this department.
Your third question is: 'Tf the Commission has authority
to continue the present use by the boat club, can it accept
such a bond as is suggested?" (That is, a bond from the
boat club, which occupies a portion of the land under a
license so to occupy from the Commission, to indemnify
the Commission or the Commonwealth for any liability
on the part of the Commission or the Commonwealth to
JAY E. BENTON, ATTORNEY-GENERAL. 283
persons passing or repassing over the lands in question for
the purpose of using the boat club.)
You do not state in your letter whether any road has been
laid out on the existing embankment or elsewhere by the
Commission, giving access to the boat club or to the land.
It is impossible for this department, therefore, to determine
what, if any, liability would rest upon the Commission or
the Commonwealth relative to persons driving along the
embankment to which you refer in your letter. If no way
has been laid out by the Commission, it is highly improbable
that there would be any liability to persons entering upon
the land to go to the boat club. If the Commission has laid
out a highway, liabiHty would be governed by the provisions
of G. L., c. 81, § 18, and there would be no liability on the
part of the Commission or the Commonwealth for injury
due to the absence of a railing. The taking of a bond of
indemnity from the Commission's licensee could not, in any
event, be an admission of any duty or liability upon the
part of the Commonwealth; and, as a protection from
expense of litigation, as well as more serious obUgations, if
any there be, the acceptance of an indemnity bond from
the boat club would seem to be within the authority of the
Commission.
If, however, in the opinion of the Commission the way
in question, whatever its character may be, is not safe
for the use of automobiles without a railing, the acceptance
of a bond, without insistence upon the erection of such a
railing by the Commission's licensee, although relieving
against possible liability on the part of the Commission or
the Commonwealth, does not tend to ensure the safety
of the public traveling over such way.
284 opinions of the attorney-general.
Certified Milk — Foreign Supervision — Medical
Milk Commissions.
Certification of milk by a foreign corporation or board is not a sufficient com-
pliance with the requirements of G. L., c. 180, §§ 20-25, as amended.
m?ssk)nE°S" You request my opinion as to whether or not a certain
^"'^1923^'''"' proposed plan for the certification of milk complies with the
November 1. provisloiis of G. L., c. 180, §§ 20-25, as amended.
You state that it has been suggested to you that a certain
citizen of New Hampshire be permitted to sell "certified
milk" in Boston. It is said that "the milk is supervised
by the Cheshire County Medical Commission" (not a
Massachusetts corporation), and it is apparently proposed
that this milk should be sold in Boston under a certification
made by this foreign commission and "approved by the
Boston Medical Milk Commission." Whether it is in-
tended that the Boston Medical Milk Commission shall
also certify the milk is not plain from your communication,
but unless they did so certify it themselves its sale as
"certified milk" would be unlawful in any event.
G. L., c. 180, §§20 and 21, provide for the creation of
corporations composed of physicians and members of boards
of health, to be known as medical milk commissions, and
the purpose of such bodies is said by the statute to be:
"for the purpose of supervising the production of milk."
By section 23, as amended by St. 1923, c. 252, such corpo-
rations may enter into written agreements with dairymen
for the production of milk under their supervision, of at
least a minimum prescribed standard, under conditions
prescribed by the corporations. The conditions prescribed
are to be approved by the Department of Public Health.
By section 24 the working methods of the corporations and
the dairies with which they make contracts are to be subject
to investigation by the department. The corporations
may certify milk produced under their supervision, which
may be sold as "certified milk," so called.
It is not the intent of the statute that milk certified by
JAY R. BENTON, ATTORNEY-GENERAL. 285
a foreign corporation, not subject to the provisions of
chapter 180, should be sold in this State as "certified milk,"
norisit the intent of the statute that the corporations formed
under its provisions should act merely as registrants of
the acts of a foreign commission. The intent of the statute
is that milk of the quality known as "certified" should be
produced under the supervision of these Massachusetts
corporations, called medical milk commissions, through
contracts made by them with dairymen, which prescribe
the particular conditions under which the milk should be
produced, these conditions to have the approval of the
Department of Public Health of this State.
To permit these medical milk commissions to forego the
making of contracts with dairymen for the production of
milk under conditions approved by the State Department
of Health, and in lieu thereof to accept a certificate of the
quality of the milk made by officials of another State, would
be entirely contrary to the purpose and intent of the statute.
The commissions cannot substitute for their own supervision
and regulation of the dairies which are the source of their
milk supply the supervision of a commission of another
State.
I am of the opinion that the proposed plan for certification
of milk does not conform to the statutory requirements.
Prisoners — State Prison — Successive Sentences.
A second sentence of a person serving a sentence at the State prison begins to run
. upon the expiration of the minimum term of the first sentence.
The first sentence of sucli prisoner is not terminated by the taking effect of the
second sentence.
After the second sentence of such prisoner takes effect, both sentences run con-
currently.
You state that a man was sentenced to the State prison m^gsionfr^of"
on December 16, 1920, to serve not more than five and not "^""fg'ir
less than three years; that he escaped from the prison
on May 11, 1921, and was returned thereto on September
November 10.
286 OPINIONS OF THE ATTORNEY-GENERAL.
11, 1921; that for the crime of escape he was sentenced to
the State prison for not more than one and one-half years
and not less than one year, said sentence to take effect from
and after the expiration of his first sentence. You request
my opinion upon the following questions : —
1. Assuming that no parole is granted to the prisoner, and assuming
that he has not been punished or broken the rules of the prison, upon
what day would he be entitled to release upon these two sentences?
2. Assuming no parole is granted him on the first sentence, upon what
day will the second sentence begin to run? In other words, is the 4-
months' period which he spent outside the prison automatically deducted
from his term?
G. L., c. 279, § 24, provides, in part: —
If a convict sentenced to the state prison receives an additional
sentence thereto, it shall take effect upon the expiration of the minimum
term of the preceding sentence.
This second sentence, accordingly, will begin to run upon
the expiration of the minimum term of the first sentence.
The convict was at large for four months, and this period
should manifestly not be considered as time served under
his sentence. The minimum term of his first sentence will
therefore expire three years and four months after December
16, 1920, and his second term will then begin to run.
The first sentence is not, however, in my opinion, termi-
nated by the taking effect of the second. The convict
is under sentence during the whole of the maximum term
of the first sentence. A sentence for a minimum and
maximum term is, in effect, a sentence for the maximum
fixed by the court. Commonwealth v. Brown, 167 Mass.
144, 146; Oliver v. Oliver, 169 Mass. 592, 594; Ex parte
Spencer, 228 U. S. 652, 661; Adams v. Russell, 229 U. S.
353, 368. It necessarily follows that after the second
sentence takes effect both sentences run concurrently.
The maximum period of time during which the prisoner
may be confined under both sentences is five years, since
JAY R. BENTON, ATTORNEY-GENERAL. 287
his second sentence will have completely expired before the
maximum of his first sentence expires. Assuming that no
parole is granted to him, and assuming that he has not been
punished or broken the rules of the prison, he is entitled,
under the provisions of G. L., c. 127, § 133, to a permit to
be at liberty upon such terms and conditions as the Board
of Parole may prescribe when he has served four years.
If the record shows that he has violated the rules of the
prison, he is not entitled to be released until he has served
five years.
November 20.
Construction of St. 1922, c. 462 — Directory or
Mandatory.
A statute directing a public official to do a certain act within a certain time is
generally construed as being directory rather than mandatory, and not as
limiting his authority to do the act after the expiration of the time.
St. 1922, c. 462, directing the Division of Waterways and Public Lands to determine
the location where it is advisable to build a public terminal for the Cape Cod
Canal, and authorizing the Division thereafter to build such terminal, does
not require the Division to determine the location within definite limits of
time.
You ask me to advise you with reference to St. 1922, c. m?ssionS°<^'
462, if, in my opinion, the Division of Waterways and Public Public works.
Lands is required, within definite limits of time, to determine
the location along the line of the Cape Cod Canal or else-
where in the town of Bourne or Sandwich, where, in its
opinion, it is advisable to build a public terminal.
St. 1922, c. 462, is, in part, as follows: —
Section 1. The division of waterways and public lands of the depart-
ment of public works, hereinafter called the division, is hei'eby authorized
and directed to determine, after public hearings to be held in one or more
places in each of the counties of Barnstable and Plymouth, and after such
examination as it may deem necessary, the location along the line of the
Cape Cod canal or elsewhere in the town of Bourne or Sandwich, where,
in its opinion, it is advisable to build a public terminal which shall include
a pier and approaches, and such equipment, appliances and rail con-
nections as it deems necessary, and to do such other work as may be
necessary and advisable to carry out the purposes of this act.
288 OPINIONS OF THE ATTORNEY-GENERAL.
SfiCTIon 2. When the location of the proposed terminal has been so
determined, the division may purchase, or take by eminent domain under
chapter seventy-nine of the General Laws, such lands and flats and rights
and interests therein as may be necessary, and may build such terminal;
provided however, that no expense shall be incurred until contributions
towards the cost of said terminal amounting to seventy-five thousand
dollars have been made by the counties of Barnstable and Plymouth and
paid into the state treasury. . . , The division may expend the total sum
so contributed, together with a further sum, not exceeding seventy-five
thousand dollars, out of the annual appropriation or appropriations for
the improvement of rivers and harbors, when such siun and the l^otal
sum contributed as aforesaid are made available for the purposes of this
act.
In effect the statute authorizes and directs the Division
to determine, after pubUc hearings and examination, the
location along the hne of the Gape Cod Canal or elsewhere
in the town of Bourne or Sandwich, where, in its opinion,
it is advisable to build a public terminal; and further pro-
vides that when the location of the proposed terminal has
been so determined the Division may purchase or take by
eminent domain such lands and interests therein as may
be necessary, and may build such terminal; but shall incur
no expense until contributions towards its cost have been
made by the counties of Barnstable and Plymouth. No
definite time is stated in the act when the determination
shall be made.
A statute authorizing and directing a public official to do
a certain act within a certain time is generally construed
as being directory rather than mandatory, and not as
limiting his authority to do the act after the expiration
of the time. Pond v. Negus, 3 Mass. 230, 232; Clemens
Electrical Mfg. Co. v. Walton, 168 Mass. 304, 307, 308;
Rutter V. White, 204 Mass. 59, 61, 62. The cases also some-
times go further in interpreting a positive direction, in the
light of the statute as a whole, as importing only power or
authority. The word "shall," used in that connection,
lias been construed to mean ''may." Suburban Light &
JAY R. BENTON, ATTORNEY-GENERAL.
Power Co. v. Boston, 153 Mass. 200, 202; Rea v. Aldermen
of Everett, 217 Mass. 427; Ashley v. Three Justices of Superior
Court, 228 Mass. 63, 69, 70.
The act doe^ not direct the Division to proceed with the
construction of the terminal at any time. You will note
that section 1 provides that the Division is to determine
the location, after public hearings, and "after such exami-
nation as it may deem necessary." This language clearly
indicates that it is within the Division's discretion as to how
extensive an examination shall be made. You are not
limited as to time. Further, if your Division should de-
termine that for a proper examination certain expenses
should be incurred, you are precluded from proceeding until
contributions have been made by the counties of Barnstable
and Plymouth and paid into the State treasury. This is a
condition precedent to your incurring expense. This is,
of course, collateral to your main question, which has been
answered above to the effect that your Division is not re-
quired to determine the location within definite limits of
time.
289
Department of Public Health — Aberjona River —
Regulations — Sewage.
The word "sewage" as used in St. 1911, c. 291, includes filth from manufactories
as well as from dwellings.
The Department of Public Health may prevent the discharge of sewage into the
Aberjona River and its tributaries as well as the creation of a nuisance therein.
You have asked my opinion relative to several matters TotheCom-
'' ■*■ missioner of
connected with drainage into the Aberjona River and its Public Health.
tributaries. November 27.
Your first question is as follows: — "Is the word sewage
in chapter 291, Acts of 1911, to be interpreted to include
all manufacturing filth or refuse, even if free from human
excreta or household wastes?"
I am of the opinion that the word "sewage" in the statute
under consideration is not limited to household wastes and
290 OPINIONS OF THE ATTORNEY-GENERAL.
human excreta, but includes filth and refuse from manu-
factories as well as from dwellings.
No precise definition of the word "sewage," applicable
to all conditions, is given in the decisions of our Supreme
Court or in the statutes. The connotation of the word
varies with regard to the context of the particular act under
consideration, but it is not in any event limited so as to
apply only to what is sometimes called "house slops." As
used in the present statute the essential character of the thing
designated as sewage is that it is something carried into
the river through a sewer. The entrance into the river of
other noxious substances which might be carried by flow,
percolation or surface drainage into the stream is taken
care of by the last clause of the section. The word "sewage"
has been defined in various decisions along these general
lines : —
The refuse and foul matter, solid or liquid, carried through a sewer by
the water flowing therein. (Wendell v. Waukesa, 110 Wis. 101.)
The refuse and foul matter, solid or liquid, which a sewer carries off.
(Morgan v. Danbury, 67 Conn. 484.)
The matter which passes through sewers; excreted and waste matter,
solid and liquid, carried off in sewers. (Century Dictionary.)
Sewerage is a system of drainage by means of sewers, and sewage is
sometimes used to denote the water flowing in or carried off by sewers and
sometimes the system of sewers for carrying off filth or superfluous water.
(Wilson V. Chicago Sanitary Dist., 133 111. 443.)
Excrement, waste stuff or dye material washed into a river by the sur-
face drainage and not conducted there by a system of pipes is not sewage.
(Durham v. Eno Mills, 144 N. C. 705.)
Your second question is as follows: — "In the opinion of
the Attorney General is St. 1911, c. 291, to be interpreted
to mean that the department is to prohibit the discharge
of sewage into the Aberjona River or its tributaries, even
though the quantity of sewage now being discharged into
said river or tributaries is insufficient to create a nuisance
or cause injury to the public health?"
Under the act in question your department has the power
JAY R. BENTON, ATTORNEY-GENERAL. 291
to prevent the discharge of any sewage into the Aberjona
River.
Your third question is as follows: — "Is it the duty of the
department to prohibit the discharge of both sewage and
manufacturing wastes into the Aberjona River or its tribu-
taries, even though neither sewage nor such waste is now
being discharged there in such quantities as to cause the
condition of the river to be injurious to public health or to
create a public nuisance?"
As I have said in my answer to your second inquiry, your
department has the power to prohibit the discharge of any
sewage into the river. It also has the power to prohibit
the discharge into the river of any substance which cannot
be said to be included in the term ''sewage" and which is
or may be injurious to public health or creates or has a
tendency to create a public nuisance. In regard to these
substances other than sewage, the department's power to
prohibit their entrance into the river exists only if they may
reasonably be said to create or to be likely to create the
conditions mentioned, that is, injury to public health or
formation of a public nuisance.
As regards sewage, no previous determination of the
department as to the conditions which may be created by
the sewage is necessary. I am of the opinion, however,
that it is left to the discretion of the department to exercise
its power of prohibition, both as to sewage and as to other
substances, in a reasonable manner, with due regard to
the public welfare. The department is not required by
the terms of the act to prohibit the entrance of all sewage.
It is its duty, however, to prohibit the entrance of any
sewage which it finds injurious or likely to be injurious to
the public. It is its duty to deal with "other substances"
in like manner, and it may prohibit the entrance of sewage
altogether.
That the words "authorized and directed," as used by
the Legislature in this statute, are not, strictly speaking,
mandatory, but do so far compel the department to action
292 OPINIONS OF THE ATTORNEY-GENERAL.
that it cannot arbitrarily or capriciously refuse to act, but is
permitted to use a wise discretion as to when it shall proceed
to prohibit, seems to be indicated by the provisions of section
2, which directs the department to use persuasion and advice
as a means of remedying pollution which may be occurring
or likely to occur. Whether the department should or
should not exercise its authority to prohibit discharges into
the river in any particular instance depends upon a determi-
nation of the facts relative thereto and an application of
the principles of law suggested.
Upon the questions of fact involved this office cannot pass.
It is for the department to say whether the public interest
requires it to act to prohibit the discharge of sewage or
other substances into the river. In the absence of any
injury to the public or individuals, or the likelihood of any
such injury arising from a given set of conditions, it would
not appear to be obligatory on the department to take any
steps under the provisions of the act.
Your fourth question is as follows: — "Can the depart-
ment, in case it should find that a nuisance exists in a tribu-
tary stream which disappears before reaching the main
stream, prohibit the entrance or discharge of sewage, etc.,
into the tributary only, or must any order under this act
cover the entire stream and its tributaries?"
In my opinion, the provisions of the act under consider-
ation permit the department, in the reasonable exercise
of its discretion, to prohibit the discharge of sewage into
the river or into any of its tributaries, as such, and the
prohibition may be enforced as to the whole river system
or as to any of its parts.
jay r. benton, attorney-general. 293
License to maintain Garage and keep Gasoline —
License Commissioners of Cambridge — State
Fire Marshal — Commissioner of Public Safety
— Right of Appeal — Matters for Consideration.
Under G. L., c. 148, § 45, an appeal lies to the State Fire Marshal from a decision
of the board of license commissioners of Cambridge in granting a license to
conduct or maintain a garage of the first class and to keep inflammable liquid
in connection therewith, and, under G. L., c. 147, § 5, to the Commissioner
of Public Safety from a decision of the State Fire Marshal confirming such
grant.
The State Fire Marshal and the Commissioner of Public Safety, in making decisions
on such appeals, have the right to consider not only fire hazard but the in-
convenience and annoyance of persons affected and the general good order
and welfare of the community.
You have requested my opinion on three questions of law m?9sipnM°S'
arising out of the following situation : — "^ 1923 ^^*^"
November 28.
On May 23, 1923, , Street, Cambridge,
petitioned the board of license commissioners of Cambridge for a license
to conduct or maintain a garage of the first class for eight cars additional,
and keeping or storing volatile inflammable liquid in connection therewith
in tanks of cars only.
After due notice and hearing held on June 19, 1923, said license was
granted.
On August 9, 1923, appeal was made to the State Fire Marshal, re-
questing that the State Fire Marshal give a hearing in the case. On
August 20, 1923, the State Fire Marshal granted a hearing and made the
following decision:
"The decision of the Board of License Commissioners granting a license
to conduct or maintain a garage of the first class for eight cars and to keej)
volatile inflammable liquid in connection therewith, in tanks of cars only,
at No. Street, in the city of Cambridge, is liereby
confirmed."
An appeal from the decision of the State Fire Marshal to the Com-
missioner of Public Safety was taken, and on October 29, 1923, the Com-
missioner of Public Safety granted a hearing on this appeal.
Your first question is : Does a right of appeal lie from the
board of license commissioners of Cambridge to the State
Fu-e Marshal?
The answer is "Yes." G. L., c. 148, § 45, specifically
provides for such an appeal.
294 OPINIONS OF THE ATTORNEY-GENERAL.
Your second question is : Does an appeal lie from the State
Fire Marshal's decision to the Commissioner of Public
Safety?
The answer to this question is also in the affirmative.
See G. L., c. 147, § 5; also, V Op. Atty. Gen. 718.
Your third question is as follows : What facts can legally
be considered by the State Fire Marshal and the Com-
missioner of Public Safety in arriving at a decision on this
case? Should this opinion be based entirely on the fire
hazard or may any and all facts relative to such matter,
and which might rightfully be considered by the board of
license commissioners of Cambridge, be considered by the
Fire Marshal and the Commissioner of Public Safety in
arriving at a decision?
First, it is to be pointed out that the powers of the State
Fire Marshal and, in turn, the Commissioner are not affected
by Spec. St. 1919, c. 83, or St. 1922, c. 95, as both acts
specifically provided that "nothing herein contained shall
affect the authority of the state fire marshal." For the
purposes of this decision, St. 1894, c. 399, contained prac-
tically the same provisions as are now found in G. L., c. 148,
§ 14, which section provides, in brief, that no building shall
be used for the keeping, storage, etc., of inflammable articles
unless licensed. In construing this act the Supreme Judicial
Court, in the case of Commonwealth v. Packard, 185 Mass.
64, 67, held that the tribunal designated to pass upon and
determine whether a license should be issued might give
due consideration to those who might be inconvenienced
and annoyed, and also have a proper regard for the general
good order and welfare of the community. While G. L.,
c. 148, § 14, applies outside of the metropolitan fire pre-
vention district, yet by section 30 the Marshal is given,
within the metropolitan district, the powers given by said
section 14; so that the decision of the court applies here:
with the result, that the State Fire Marshal had, and the
Commissioner of Public Safety has, on the appeal now
l)efore him, the right not only to consider the fire hazard
JAY R. BENTON, ATTORNEY-GENERAL. 295
but, as the court pointed out, the right to give consideration
to those who may be inconvenienced and annoyed, and to
have a proper regard for the general good order and welfare
of the community.
November 30.
Registrar of Motor Vehicles — Records in Certain
Criminal Cases.
It is the duty of courts and trial justices to send to the Registrar of Motor Vehicles
abstracts of records of cases in which persons are charged with violations of
the automobile laws, when such cases have been disposed of.
Courts and trial justices are not bound to send to the Registrar of Motor Vehicles
abstracts of cases which have been continued but not disposed of.
You request my opinion as to whether the courts are '^^isl^oiS'S'
required to send to the Registrar of Motor Vehicles abstracts ^^t.^}^^^''''^-
of certain records of cases in which persons are charged with
violation of any of the provisions of G. L., c. 90.
G. L., c. 90, § 27, provides, in part: —
A full record shall be kept by every court and trial justice of every case
in which a person is charged with a violation of any provision of this
chapter, and an abstract of such record shall be sent forthwith b}^ the
court or trial justice to the registrar. Said abstracts shall be made upon
forms prepared by the registrar, and shall include all necessary infor-
mation as to the parties to the case, the nature of the offence, the date of
the hearing, the plea, the judgment and the result; and every such abstract
shall be certified by the clerk of the court or by the trial justice as a true
abstract of the record of the court.
It is the clear intent of the statute that abstracts of records
of cases that are disposed of, regardless of the manner
of disposition, shall be sent forthwith to the Registrar of
Motor Vehicles. I am therefore of the opinion that it is
the duty of courts and trial justices in all cases in which
persons are charged with a violation of any provision of
G. L., c. 90, to send forthwith to the Registrar abstracts of
records of such cases as have been disposed of. This
includes cases where there has been an acquittal, a con-
296
OPINIONS OF THE ATTORNEY-GENERAL.
viction and fine, or the defendant placed on probation, or
where a plea of nolo has been accepted and the case placed
on file. Courts and trial justices are not bound to send to
the Registrar abstracts of cases which have been continued
from time to time but have not been disposed of.
State House Grounds — Traffic and Parking Regu-
lations — Authority of Superintendent of Build-
ings.
Pursuant to statutory authority, the title to the ways within the State House
grounds has been acquired by the Commonwealth, and the streets formerly
located therein have been discontinued.
Under G. L., c. 8, §§ 4, 9 and 12, and c. 85, § 23, the Superintendent of Buildings,
with the approval of the Governor and Council, may make traffic and parking
regulations applicable to ways within the State House grounds, and may
enforce such regulations through watchmen appointed by him.
To the Super-
intendent of
Buildings.
1923
December 5.
You ask me to give you my opinion as to the following
points : —
1. As to the authority of the Superintendent of Buildings to make
traffic regulations and enforce the same.
2. As to the authority of the Superintendent of Buildings to make
l^arking regulations and enforce the same.
3. As to the jurisdiction of the Superintendent of Buildings over Mt.
Vernon Street between Bowdoin and Hancock streets with reference to
parking and traffic.
4. As to the jurisdiction of the Superintendent of Buildings over the
driveway within the State House yard, from a point opposite the end of
Ashburton Place to the junction of the driveway with Mt. Vernon Street,
as to parking and traffic.
5. If you find that the Superintendent of Buildings has authority and
jurisdiction in the above matters, can he vest that authority in the watch-
men in his department who act as traffic officers?
By St. 1888, c. 349, and several succeeding statutes, a
taking was authorized by purchase or otherwise, in the name
and behalf of the Commonwealth, of land adjacent to or
near the State House, including that portion of Mt. Vernon
Street as now extended from Hancock Street to Bowdoin
JAY R. BENTON, ATTORNEY-GENERAL. 297
Street and the driveway from a point opposite the end of
Ashburton Place to its junction with Mt. Vernon Street.
Said succeeding statutes are St. 1892, c. 404; St. 1893,
c. 450; St. 1894, c. 532; and St. 1901, c. 525. St. 1888, c.
349, § 6, also authorized the discontinuance of Temple
Street, between Mt. Vernon Street and Derne Street, and
any other avenue or way on the land acquired or taken
under the act; and St. 1901, c. 525, authorized the closing
of Mt. Vernon Street from Beacon Street to the State House
Arch.
Pursuant to the authority so granted, the land described
in these statutes has been acquired by the Commonwealth
and title is vested in the Commonwealth, in fee, and Temple
Street, from Derne Street to Mt. Vernon Street, and Mt.
Vernon Street, from Hancock Street to Beacon Street, have
been discontinued, by takings duly recorded with Suffolk
Deeds (Lib. 1849, fol. 225; Lib. 2076, fol. 245; Lib. 2124,
fol. 507), and by order of the Governor and Council, July
24, 1901. The order of the Governor and Council is as
follows : —
Ordered: That the Governor and Council actmg under chapter 525 of
the acts of the current year and under every other power and authority
hereto enabUng, hereby close Mt. Vernon street from Beacon street to
the State House Arch, and lay out for use as a park, with driveways,
walks, grass-plots, curbing and railing, with new approaches to the State
House from Bowdoin street and from Beacon street, that tract of land
lying easterly of the State House and westerly of Bowdoin street as
widened and established by an order of the Governor and Council of
even date herewith, in accordance with Plan No. 1717-15, made by
Ernest W. Bowditch, Landscape Engineer, Boston, Mass., July 2, 1901,
and on file with the records of the councU.
Plan No. 1717-15, referred to in said order, shows the
driveway from a point opposite the end of Ashburton Place
to its junction with Mt. Vernon Street substantially as
it now is.
The powers and duties of the Superintendent of Buildings
are defined in G. L., c. 8. Sections 4, 9 and 12 of that
chapter contain the following provisions : —
298 OPINIONS OF THE ATTORNEY-GENERAL.
Section 4. He may appoint such clerks, engineers, electricians, fire-
men, oilers, mechanics, watchmen, elevator operators, porters, cleaners
and other persons as may be necessary to enable him to perform his duties.
Section 9. The superintendent shall, under the supervision of the
governor and council, have charge of the care and operation of the state
house and its appurtenances . . .
Section 12. The superintendent shall take proper care to prevent
any trespass on, or injury to, the state house or its appurtenances, or
any other building or part thereof in Boston owned by or leased to the
commonwealth for public offices; and if any such trespass or injury is
connnitted, he shall cause the offender to be prosecuted therefor. For
any criminal offence committed in any part of the state house or the
grounds appurtenant thereto, or in any other building in Boston owned
by or leased to the commonwealth, the superintendent and his watch-
men shall have the same power to make arrests as the police officers of
Boston.
G. L., c. 85, § 23, is as follows: —
The governor, with the advice and consent of the council, may make
l)y-laws for the regulation of travel on ways belonging to the common-
wealth. Whoever violates any such by-law shall be punished by a fine
of not more than fifty dollars.
In my opinion, these provisions contain a sufficient grant
of autliority to the Superintendent of Buildings to make
traffic and parking regulations appUcable to the ways
referred to in your inquiry, which should be approved by
the Governor and Council, and to enforce such regulations
through the watchmen appointed by him. See Common-
wealth V. Brooks, 109 Mass. 355; Commonwealth v. Mulhall,
162 Mass. 496; Commonwealth v. Newhall, 205 Mass. 344.
jay r. benton, attorney-general. 299
Taxation — Domestic Business Corporation — De-
duction ON Account of Leasehold Interest.
The purpose of the deductions in the corporation tax law is to avoid double taxation.
Leaseholds are not real estate subject to local taxation, and therefore are not de-
ductible, under G. L., c. 63, §30, par. 3, (a) and (c), whether the property is
within or outside the Commonwealth.
Since buildings on land are taxable with the land as real estate, although by agree-
ment, as against the owner, they may be considered as personal property, a
lessee corporation is not entitled to a deduction on account of a building erected
by it on the land of another.
You ask my opinion upon various questions concerning m?ssionS°^"
the right of a domestic business corporation owning a lease- anFxIxation.
hold interest in real estate to a deduction under G. L., c. December lo.
63, § 30, par. 3, (a) and (c), on account of such leasehold
interest. Said provisions are as follows : —
3. "Corporate excess," in the case of a domestic business corporation,
the fair cash value of all the shares constituting the capital stock of a
corporation on the first day of April when the return called for by section
thirty-five is due, less the value of the following:
(a) The works, structures, real estate, machinery, poles, underground
conduits, wires and pipes owned by it within the commonwealth subject
to local taxation, except such part of said real estate as represents the
interest of a mortgagee.
(c) Its real estate, machinery, merchandise and other tangible property
situated in another state or country, except such part thereof as represents
the interest of a mortgagee.
Apart from statute a lease of land is, in a general sense,
personal estate. It is, however, an interest in land, and
is called a chattel real. Moulton v. Commissioner of Corpo-
rations and Taxation, 243 Mass. 129. In Massachusetts
it is provided by statute (G. L., c. 4, § 7) that "in construing
statutes the following words shall have the meanings herein
given, unless a contrary intention clearly appears: . . .
Seventeenth, 'Land,' 'lands' and 'real estate' shall include
lands, tenements and hereditaments, and all rights thereto
and interests therein"; and our court has said that ''these
words are broad enough to comprehend leases." Moulton
300 OPINIONS OF THE ATTORNEY-GENERAL.
V. Commissioner of Corporations and Taxation, supra, 132.
If, therefore, the question were simply whether the words
"real estate," occurring in G. L., c. G3, § 30, par. 3, (a) and
(c), should be construed to include leaseholds, without
taking into account their context and the history of their
use in that connection, the answer would not be free from
doubt. Consequently, your inquiry requires some ex-
amination of the history and purpose of the corporation
tax laws of Massachusetts.
The first statute providing for a franchise tax on corpo-
rations was St. 1864, c. 208. Under that act an excise
was levied upon the franchise of domestic corporations,
based upon the total value of their capital stock after de-
ducting the value of their real estate and machinery for
which they were actually locally taxed. Commonwealth
V. Hamilton Mfg. Co., 12 Allen, 298; New England, etc.,
S. S. Co. V. Commonwealth, 195 Mass. 385; Simplex Elec.
Heating Co. v. Commonwealth, 227 Mass. 225. Sections
1 and 5 of the act were as follows : —
Section 1 . The assessors of the several cities and towns shall annually,
on or before the first Monday of August, return to the treasurer of the
Commonwealth the names of all corporations having a capital stock
divided into shares, chartered by this Commonwealth or organized under
the general laws and established in their respective cities and towns, or
owning real estate therein, and the value of the real estate and machinery
for which each was taxed in such cities and towns on the first day of May
preceding.
Section 5. The treasurer and the auditor of the Commonwealth shall
be a board of commissioners wlio shall, excepting in the cases of telegraph,
coal and mining companies, and such railroad companies as own lines of
railroad extending beyond the limits of the state, ascertain from the returns
or otherwise, the excess of the market value of all the capital stock of
each corporation or banking association not exempted from taxation,
state and municipal, by the laws of the United States, over the value of
its real estate and machinery, if any, as returned under the first section
of this act, and shall annually, on or before the first Monday of October,
notify its cashier or treasurer respectively, of the excess thus ascertained ;
and every such corporation or banking association shall annually, on or
JAY R. BENTON, ATTORNEY-GENERAL.
before the first Monday of November, pay to the treasurer of the Common-
wealth a tax of one and one-sixth per cent, upon such excess. Nothing
in this section shall affect the liability of any bank, insurance company,
or any other corporation for any other tax imposed upon it, and payable
to the treasurer of the Commonwealth under other existing laws.
By St. 1865, c. 283, it was provided that the Tax Com-
missioner should determine the value and amount of all real
estate and machinery owned by each corporation and subject
to local taxation, instead of merely taking the local assessors'
figures, the rate was changed from one and one-sixth per
cent to the average tax rate of all the cities and towns, and
the deduction was extended to include the value of real estate
and machinery wherever situated. Sections 1, 4 and 5
of that act were, in part, as follows : —
Section 1 . The assessors of the several cities and towns shall annually,
on or before the first Monday of August, return to the tax commissioner
hereinafter named, the names of all corporations, except banks of issue and
deposit, having a capital stock divided into shares, chartered by this Com-
monwealth or organized under the general laws, for purposes of business or
profit, and established in their respective cities and towns, or owning real
estate therein, and a statement in detail of the works, structures, real
estate and machinery owned by each of said corporations, and situated
in such city or town, with the value thereof, on the first day of May
preceding, and the amount at which the same is assessed in said city or
town for the then current year. They shall also, at the same time, return
to said tax commissioner the amount of taxes laid, or voted to be laid,
within said city or to^\^l, for the then current year, for state, county and
town purposes, including highway taxes.
Section 4. The tax commissioner shall ascertain, from the returns or
otherwise, the true market value of the shares of each corporation included
in the provisions of section three, and shall estimate therefrom the fair
cash valuation of all of said shares constituting the capital stock of such
corporation on the first day of May next preceding, which shall be taken
as the true value of its corporate franchise for the purposes of this act.
He shall also ascertain and determine the value and amount of all real
estate and machinery owned by each corporation, and subject to local
taxation, and to the deductions hereinafter provided; and for this purpose
he may take the amount or value at which such real estate and machinery
are assessed at the place where the same are located as the true amount
301
302 OPINIONS OF THE ATTORNEY-GENERAL.
or value; but such local assessment shall not be conclusive of the true
amount or value thereof.
Section 5. Every corporation embraced in section three shall annually
pay a tax upon its corporate franchise at a valuation thereof equal to the
aggregate value of the shares in its capital stock, as determined in the
preceding section, after making the deductions provided for in this section,
at a rate determined by an apportionment of the whole amount of money
to be raised by taxation upon property in the Commonwealth during the
same current year, as returned by the assessors of the several cities and
towns under section one, upon the aggregate valuation of all the cities and
towns in the Commonwealth for the preceding year, as returned under
chapter one hundred and sixty-seven of the acts of the year eighteen
hundred and sixty-one, and acts in addition thereto: . . . From the
valuation, ascertained and determined as aforesaid, there shall be de-
ducted, — . . . Second, in case of other corporations, included in section
three, an amount equal to the value, as determined by the tax com-
missioner, of their real estate and machinery, subject to local taxation,
wherever situated.
The system thus established was substantially continued
down to the enactment of St. 1903, c. 437. New England,
etc., S. S. Co. V. Commonwealth, 195 Mass. 385, 387. In
that statute additional deductions were allowed of the value
of securities which, if owned by a natural person resident
in the Commonwealth, would not be liable to taxation, and
of property generally (instead of real estate and machinery
only) situated in another state or country and subject to
taxation therein. It was held that the word "property,"
there used, meant tangible property, such as real estate,
merchandise, machinery and animals. Bellows Falls Power
Co. V. Commonwealth, 222 Mass. 51 ; Simplex Elec. Heating
Co. V. Commonwealth, 227 Mass. 225. See Nichols, Tax-
ation in Massachusetts, 2nd ed., p. 542. In 1902 under-
ground conduits, wires and pipes were made locally tax-
able, and their value was deducted from the corporate
franchise tax. St. 1902, c. 342. Poles were treated in
the same way in 1909. St. 1909, c. 439. See St. 1909,
c. 490, pt. Ill, § 41; Nichols, Taxation in Massachusetts,
2nd ed., p. 539. As thus modified, the franchise tax law
was continued without modification important to this
JAY R. BENTON, ATTORNEY-GENERAL. 303
discussion until 1919. In that year the structure of the
corporation tax law was materially changed and a tax
on income was added as an additional factor of the tax.
Gen. St. 1919, c. 355; codified in G. L., c. 63, §§ 30-52.
The provisions of the old law for determining the value of
the corporate franchise were then carried over and applied
to the determination of the ''corporate excess" which forms
the basis of one factor of the present excise tax.
The reason for the deduction allowed for real estate and
machinery in the acts of 1864 and 1865 was to avoid double
taxation, the real estate and machinery of corporations
being subject to local taxation in the towns where they
were situated. Commonwealth v. Hamilton Mfg. Co., 12
Allen, 298, 305, 306; F tremens Ins. Co. v. Commonwealth,
137 Mass. 80, 83. The deductions were extended when it
was found that in some other respects the system resulted in
double taxation of corporations. Farr Alpaca Co. v. Co7n-
monwealth, 212 Mass. 156, 159, 160. But a corporation
was entitled to deductions only so far as deductions were
allowed by the statute. Commonwealth v. New England
Slate & Tile Co., 13 Allen, 391 ; Simplex Elec. Heating Co.
V. Commonwealth, 227 Mass. 225, 229.
By St. 1881, c. 304, §§ 1-3, the local tax law was amended
by making provision for taxing separately as real estate the
interest of a mortgagee (see G. L., c. 59, §§ 12-14). In
Firemens Ins. Co. v. Commonwealth, 137 Mass. 80, 83, it
was held that this statute made the interest of a mortgagee,
for all purposes of taxation, real estate subject to local
taxation, and thus brought such interest within the words of
the corporation franchise tax law, requiring the Tax Com-
missioner to deduct an amount equal to the value "of their
real estate and machinery, subject to local taxation, wherever
situated." The rule thus declared prevailed until Gen.
St. 1919, c. 332, which amended the previous law by ex-
cepting from the deductions allowed "that part of the said
value which, as matter of law, may be deemed to be real
estate and is represented by a mortgage debt." This was
304 OPINIONS OF THE ATTORNEY-GENERAL.
to prevent the amount of a mortgage from being deducted
twice. Nichols, Taxation in Massachusetts, 2nd ed., pp.
539, 540. This exception is carried over into G. L., c. 63,
§ 30, par. 3, (a) and (c).
Leaseholds are not, for purposes of taxation, real estate
subject to local taxation. "Taxes on real estate shall be
assessed, in the town where it lies, to the person who is
either the owner or in possession thereof on April first."
G. L., c. 59, § 11. Except for the separate tax on the interest
of a mortgagee, a real estate tax is a tax on the land as a whole
and not merely on the interest of the person taxed, although
the tax may be assessed either to the owner or to the person
in possession of the land. Parker v. Baxter, 2 Gray, 185,
189; Worcester v. Boston, 179 Mass. 41, 48; Donovan v.
Haverhill, 247 Mass. 69.
It is obvious, therefore, that a domestic corporation
owning a leasehold interest in Massachusetts real estate is
not entitled, under G. L., c. 63, § 30, par. 3 (a), to a deduction
of the value of that interest. It is only the value of "real
estate . . . subject to local taxation" which may be de-
ducted. "Real estate," for the purpose of the deduction
provided by G. L., c. 63, § 30, par. 3 (a), as well as for the
purpose of assessment under G. L., c. 59, § 11, is the entire
estate, and not some lesser interest therein. This de-
duction, by the terms of the statute, is allowed to a corpo-
ration only when it owns estate in the sense described.
It is not allowed to a corporation which owns a lease merely,
or even a mortgage interest. It is not allowed to a lessee
corporation even if the land is assessed to the lessee as
occupant, but the lessee may recover the tax of his landlord
unless there is a different agreement between them. G. L.,
c. 59, § 15. See Nichols, Taxation in Massachusetts, 2nd
ed., p. 540.
Prior to Gen. St. 1919, c. 332, the provision for a deduction
of the value of real estate and certain other kinds of property
outside the jurisdiction, first authorized by St. 1865, c. 283,
and extended by St. 1903, c. 437, § 72, was limited by the
JAY R. BENTON, ATTORNEY-GENERAL. 305
phrase "subject to local taxation," or, in the language of the
act of 1903, "subject to taxation therein." That phrase
was omitted in Gen. St. 1919, c. 332, and in the corresponding
provision of Gen. St. 1919, c. 355, pt. I, § 1, because it was
found that corporations were being taxed in many states by
excise or income taxes on their local business rather than by
taxes directly on their property in the jurisdiction, and that
they were consequently suffering from the effects of a con-
siderable amount of double taxation. See report of joint
special committee on taxation. Senate Document No. 313
of 1919. Thereafter a corporation was entitled to a de-
duction on account of the value of real estate and other
tangible property outside the Commonwealth, whether
or not the property was directly subject to taxation where
it was situated. The purpose of the change was to exempt
from an indirect tax by the Commonwealth property,
situated elsewhere, which was indirectly, but not directly,
taxed where it was situated. This was in accordance with
the "progressive tendency" of our statutes, referred to in
Farr Alpaca Co. v. Commonwealth, 212 Mass. 156, 159, 160,
"to prevent the technical distinction between excises and
property taxes from resulting in double taxation." The
words "real estate," as used in clause (c), were not intended,
in my judgment, to have a different and broader meaning
from that which they have in clause (a), i. e., the land itself,
although in clause (c) they are not qualified by the words
"subject to local taxation." This view is to some extent
supported by the correlation of the words "other tangible
property." CJ. Bellows Falls Power Co. v. Commonwealth,
222 Mass. 51 ; Simplex Elec. Heating Co. v. Commonwealth,
227 Mass. 225. It is my opinion, therefore, that a domestic
corporation is not entitled to a deduction for a leasehold
interest in real estate outside the Commonwealth.
You also ask to what deduction, if any, a lessee corporation
is entitled on account of a building erected by it on the land
of another.
A building may be considered as personal property
306 OPINIONS OF THE ATTORNEY-GENERAL.
belonging to a person other than the owner of the land to
which it is affixed, as against the owner of the land and others
having notice, if at the time it was annexed there was an
agreement, express or implied, that it should be so held.
First Parish in Sudbury v. Jones, 8 Cush. 184, 189, 190;
Gibhs V. Estey, 15 Gray, 587; Howard v. Fessenden, 14 Allen,
124, 128; Hunt v. Bay State Iron Co., 97 Mass. 279; Madigan
V. McCarthy, 108 Mass. 376; Trask v. Little, 182 Mass. 8.
But ''buildings affixed to land are in their nature real
property, and they are only considered as personal property
between the parties to an agreement making them such and
those who purchase the land with knowledge of the agree-
ment; they pass as a part of the land to a puchaser for value
without notice." McGee v. Salem, 149 Mass. 238, 240.
The tax law makes no provision for taxing buildings sepa-
rately from the land. On the contrary, G. L., c. 59, § 3,
provides : —
Real estate for the purpose of taxation shall include all land within the
commonwealth and all buildings and other things erected thereon or affixed
thereto. . . .
Accordingly, it has been held that all buildings on land
are taxable with the land as real estate. Phinney v. Foster,
189 Mass. 182, 187. See also Milligan v. Drury, 130 Mass.
428; McGee v. Salem, 149 Mass. 238.
By St. 1909, c. 490, pt. Ill, § 41, cl. 3rd, the provision
giving to domestic business corporations a deduction of
the value of certain property within the Commonwealth
subject to local taxation was changed by inserting the words
"works" and ''structures." These words would seem to
be superfluous. The reason for their inclusion is stated in
the report of the commission on taxation for the year 1908,
in the following note, at page 205 : —
By the provisions of section 40 (Revised Laws, chapter 14, section 37;
Acts of the year 1906, chapter 463, part II, section 211, part III, section
125; chapter 516, section 14), corporations are required, among other
JAY R. BENTON, ATTORNEY-GENERAL. 307
things, to make return of their works, structures, real estate and ma-
chinery. This requirement is clearly for the purpose of giving to the
Tax Commissioner such information as will aid him in making the de-
ductions provided for in this section. While it may be doubtful that
anything can be included in the words "works, structures" that could not
fairly be embraced within the meaning of real estate and machinery, the
commission has thought it proper to employ the same phraseology in the
deduction as in the return section; and therefore has added the words
"works, structures," omitted in Revised Laws, chapter 14, section 38,
in this and other sections where a corresponding omission occurs.
Clearly, in my opinion, they do not serve to extend to a
lessee corporation a right to deduct the value of a building
which, as between itself and its lessor, is personal property
belonging to the lessee, since such a structure is taxable to
the lessor as real estate.
State Retirement Association — Workmen's Com-
pensation — Injured Employee — Retirement.
Payments made in accordance with the requirements of the Workmen's Compen-
sation Act are not to be construed by the Board of Retirement as salary or
wages.
If a member of the Retirement Association above the age of seventy years applies
for retirement because of age and service and not because of any disability,
his retirement allowance should be figured from the date on which he should
have automatically been removed from the service at the age of seventy years,
in accordance with the statute [G. L., c. 32, § 2, par. (4)].
I acknowledge the receipt of your communication wherein t° jiie Board
^ 1- ^ of Retirement.
you state as follows: Because of an injury received on July oecimb^eria.
20, 1918, a member of the Retirement Association was "7"
awarded, by agreement between the Industrial Accident
Board and the Metropolitan Water and Sewerage Board,
now the Metropolitan District Commission, weekly pay-
ments of workmen's compensation. These weekly payments
to him continued until September 27, 1923, when the In-
dustrial Accident Board approved an agreement to redeem
liability by the payment of $1,100 in a lump sum.
During the time the workmen's compensation payments
308 OPINIONS OF THE ATTOENEY-GENERAL.
were being made to this beneficiary he retained his member-
ship in the Retirement Association, because at the time of
his injury he^iad reached sixty years of age and had com-
pleted at least fifteen years of service. This member has
now applied for retirement under the provisions of the general
contributory law, because of his age and service and not
because of any disability for which the workmen's com-
pensation payments were paid to him. He has submitted
proof that he is older than he has always claimed to be, so
that if he had not been injured and had remained in the
service, this proof of age would have required his retire-
ment four years ago, at age seventy, the compulsory retire-
ment age.
You request my opinion upon the following questions
based on the above facts :
1. Has the Board of Retirement the right now to retire the aforesaid
member?
2. If the answer to question 1 is in the affirmative, from what date shall
the payment of the retirement allowance be figured — (a) the date the
application for retirement was made, or (b) the date the aforesaid member
would have been automatically removed from the service at the age of
seventy years?
G. L., c. 32, § 2 (4), provides as follows: —
Any member who reaches the age of sixty and has been in the con-
tinuous service of the commonwealth for a period of fifteen years immedi-
ately preceding may retire or be retired by the board upon recommend-
ation ol the head of the department in which he is employed, or, in case
^ of members appointed by the governor, upon recommendation of the
governor and council, and any member who reaches the age of seventj'
must so retire.
G. L., c. 32, § 5 (2) A (a), provides as follows: —
Should a member of the association enter a position in the service of
the commonwealth not covered by sections one to five, inclusive, or cease
to be an employee of the commonwealth for any cause other than death,
or for the purpose of entering the service of the public schools as defined
JAY R. BENTON, ATTORNEY-GENERAL. 309
in section six, before becoming entitled to a pension, there shall be re-
funded to him all the money paid in by him under section four (2) A, with
such interest as shall have been earned thereon.
In an opinion of a former Attorney General (V Op. Atty.
Gen. 192) it was held that, —
The phrase "before becoming entitled to a pension" must be interpreted
as meaning before having become entitled to retire as a matter of right.
It thus i-estricts refunds to persons who have not yet acquired voluntary
retirement rights.
The member in question, having retained his membership
in the Retirement Association, is now entitled to retirement,
and your board has the right to retire him under the pro-
visions of G. L., c. 32, § 2 (4), and I so answer your first
question.
In an opinion of a former Attorney General to the
Treasurer and Receiver General, dated December 21, 1914,
it was decided that payments made in accordance with the
requirements of the Workmen's Compensation Act are not
to be construed by the Board of Retirement as salary or
wages. This is in conformity with the decision of the
Supreme Judicial Court in King v. Viscoloid Co., 219 Mass.
420, wherein the court says (p. 425) : —
It has been suggested that the statutory compensation given to an . . .
employee is really a payment of wages . . . But this is not so. The
qvMntiim of the compensation is measured by the amount of the wages;
but the payment is in place of all the rights of action that belong to the
injured employee, and covers suffering and temporary or permanent dis-
ability as well as loss of wages.
G. L., c. 152, § 69, provides as follows: —
The commonwealth and any county, city, town or district having the
power of taxation which has accepted chapter eight hundred and seven
of the acts of nineteen hundred and thirteen shall pay to laborers, work-
men and mechanics employed by it who receive injuries arising out of and
in the course of their emplojonent, or, in case of death resulting from such
injury, to the persons entitled thereto, the compensation required by
310 OPINIONS OF THE ATTORNEY-GENEKAL.
this chapter. Sections sixty-nine to seventy-five, inclusive, shall apply
to the connnonwealth and to any county, city, town or district having the
power of taxation which has accepted said chapter eight hundred and seven
of the acts of nineteen hundred and thirteen.
G. L., c. 152, § 73, provides as follows: —
Any person entitled to receive compensation as provided by section
sixty-nine from the commonwealth or from such county, city, town or
district, who is also entitled to a pension by reason of the same injury,
shall elect whether he will receive such compensation or such pension,
and shall not receive both. If a person entitled to such compensation
from the commonwealth or from such county, city, town or district
receives by special act a pension for the same injury, he shall forfeit all
claim for compensation; and any compensation received by him or paid
by the commonwealth or by such county, city, town or district which
employs him for medical or hospital services rendered to him may be
recovered back in an action at law. No further payment shall be awarded
by vote or otherwise to any person who has clauned and received com-
pensation under sections sixty-nine to seventy-five, inclusive.
G. L., c. 32, § 2 (4), provides, in part, as follows: —
. . . and any member who reaches the age of seventy must so retire.
This provision is explicit. I am accordingly of the opinion
that inasmuch as the member in question applied for retire-
ment because of age and service and not because of any
disability, his retirement allowance should be figured from
the date on which he should have automatically been re-
moved from the service at the age of seventy years, in
accordance with the statute [G. L., c. 32, § 2^(4)].
December 20.
jay r. benton, attorney-general. 311
Hawkers and Pedlers — Agents — License.
Under the provisions of G. L., c. 101, §§ 13, 14 and 18, no one may peddle under
a license except the person named therein. Accordingly, if a sale ia made
by an agent or representative, he and not his principal must be licensed to
make such sale.
You request my opinion on the following question : — Si88k)nS°^"
Labor and
Industries.
Is there any statutory provision which would permit any person to oecembei
peddle under a hawker's and pedler's license other than the one to whom
such license has been issued or transferred?
G. L.,c. 101, § 13, defines hawkers and pedlers as follows: —
Except as hereinafter expressly provided, the terms "hawker" and
"pedler" as used in this chapter shall mean and include any person, either
principal or agent, who goes from town to town or from place to place in
the same town selling or bartering, or carrjang for sale or barter or ex-
posing therefor, any goods, wares or merchandise, either on foot, on or
from any animal or vehicle.
G. L., c. 101, § 14, provides: —
A hawker or pedler who sells or barters or carries for sale or barter or
exposes therefor any goods, wares or merchandise, except as permitted
by this chapter, shall forfeit not more than two hundred dollars, to be
equally divided between the commonwealth and the town in which the
offence was committed.
G. L., c. 101, § 18, provides: —
Articles other than those the sale of which is licensed, or permitted
without a license, under the preceding section, and not prohibited by
section sixteen, shall not be sold by hawkers or pedlers unless duly licensed
as hereinafter provided.
Any person who attempts to sell under a license "which
has not been issued or transferred to him, or has in his
possession another's license with intent to use the same"
shall be punished as provided in section 31.
The authority to grant hawker's and pedler's licenses is
312 OPINIONS OF THE ATTORNEY-GENERAL.
vested in the Director of Standards, in accordance with the
provisions of G. L., c. 101, § 22, which is, in part, as follows:
The director may grant a license to go about carrying for sale or barter,
exposing therefor and seUing or bartering any goods, wares or merchan-
dise, the sale of which is not prohibited by section sixteen, to any person
who files in his office a certificate signed by the mayor or by a majoritj''
of the selectmen, stating that to the best of his or their knowledge and
belief the applicant therein named is of good repute as to morals and
integrity, and is, or has declared his intention to become, a citizen of the
United States.
This section discloses the safeguards employed in the
selection of those individuals who are to be entrusted with
such licenses.
I am of the opinion that your question is answered by the
express provisions of G. L., c. 101, § 13, wherein the Legis-
lature, in defining hawker and pedler, has expressly in-
cluded ''any person, either principal or agent." The
intent of the Legislature to forbid any person to peddle
under a hawker's and pedler's license other than the one
to whom such license has been issued or transferred is
clearly disclosed. G. L., c. 101, § 31.
In Commonwealth v. Hana, 195 Mass. 262, at page 265,
the court says : —
The business of peddling furnishes such opportunities for the practice of
fraud that it is a proper subject for legislative regulation.
The language employed in the statute is unquestionably
chosen in order to emphasize the fact that no one may peddle
under a license except the person named therein. Accord-
ingly, if a sale is made by an agent or representative, he
and not his principal must be Hcensed to make such sale.
See Commonwealth v. Reid, 175 Mass. 325; Commonwealth
V. Ober, 12 Gush. 493.
I accordingly answer your question m the negative.
December 31.
jay r. benton, attorney-general. 313
Banks and Banking — Trust Companies — Increase
OF Capital Stock — Amendment of Original
Charter.
a trust company incorporated prior to 1888 may, by adopting G. L., c. 172, §18,
as provided in G. L., c. 172, § 3, increase its capital stock to any amount
approved by the Commissioner of Banks, without the necessity of amending
its original charter, even though that charter prohibited any increase of
capital stock beyond $500,000.
You request my opinion in regard to the B. M. C. Durfee ^°s8iJ,nfr°^'
Trust Company of Fall River, Mass. You state that this ^''"1923
trust company was incorporated under the provisions of St.
1887, c. 85, and that it is now desirous of increasing its
capital stock beyond the hmit of $500,000 imposed by section
15 of that act. You request my opinion as to whether the
adoption by this trust company of section 18 of G. L., c.
172, as provided by section 3 of G. L., c. 172, will be sufficient
to enable it to increase its capital stock beyond $500,000
without the necessity of petitioning the Legislature for an
amendment to its charter permitting this increase.
The original general act for the regulation of safe deposit,
loan and trust companies, St. 1888, c. 413, contained no
provision by which trust companies incorporated previous
to its passage might adopt the provisions contained therein.
St. 1890, c. 315, § 2, however, provided: —
Any incorporated trust company, or safe deposit and trust company,
now transacting business in this Commonwealth and chartered by the
legislature of this Commonwealth prior to the passage of chapter four
hundred and thirteen of the acts of the year eighteen hundred and eighty-
eight, may by vote of the majority of the stock represented at a special
meeting of the stockholders legally called for the purpose accept and
adopt as a part of their charters all the provisions of any one section or
all the sections of said chapter four hundred and thirteen of the acts of
the year eighteen hundred and eighty-eight; and thereafter shall have
aU the powers and privileges and be subject to all the duties, liabilities
and restrictions set forth in such section or sections as may be thus
accepted and adopted: provided, that a certificate signed and sworn to
by the clerk of such trust company, or safe deposit and trust company,
setting forth the fact of such acceptance and adoption shall be filed with
314 OPINIONS OF THE ATTORNEY-GENERAL.
the secretary of the Commonwealth and with the board of commissioners
of saving banks within ten days from the date of such special meeting.
It is to be noted that this act provides that after adoption
the trust company "thereafter shall have all the powers and
privileges ... set forth in such sections as may be thus
accepted and adopted."
The language of St. 1890, c. 315, § 2, was considerably
shortened at the time of its incorporation into the Revised
Laws as section 2 of chapter 116, and later into the General
Laws as section 3 of chapter 172. G. L., c. 172, § 3, reads
as follows : —
A trust company chartered before May twenty-eight, eighteen hundred
and eighty-eight, transacting business in the commonwealth may adopt
as a part of its chapter, or any provision thereof which under the pre-
ceding section it may adopt, by a majority vote of the stock represented
at a special meeting called for the purpose and by filing, within ten days
from the date of such meeting, with the state secretary and with the
commissioner a certificate sworn to bj'' the clerk of such corporation and
stating such adoption.
Despite this change of language, there seems, however,
no reason to believe that any intention existed to change
the force of St. 1890, c. 315, § 2, as regards the acquisition
by a trust company, after adoption, of ''all the powers
and privileges" set forth in the adopted sections.
G. L., c. 172, § 18, is based upon R. L., c. 116, § 5, as
modified by St. 1905, c. 189, and Gen. St. 1916, c. 37, and
subsequent amendments thereto. R. L., c. 116, § 5, pro-
vided that the capital stock of trust companies should not
be more than one million dollars; St. 1905, c. 189, permitted
a trust company, subject to the approval of the Board of
Commissioners of Savings Banks, to increase its capital stock
up to that maximum in the manner provided for business
corporations; and Gen. St. 1916, c. 37, did away with the
maximum limitation and provided that trust companies,
subject to the approval of the Bank Commissioner, could
increase their capital stock up to any amount by the same
JAY R. BENTON, ATTORNEY-GENERAL. 315
method as that authorized in St. 1905, c. 189. The pro-
visions of G. L., c. 172, § 18, are as follows: —
The capital stock of such corporation shall be not less than two hundred
thousand dollars, except that in a city or town whose population numbers
not more than one hundred thousand the capital stock may be not less
than one hundred thousand dollars, divided into shares of the par value
of one hundred dollars each; and except also that in towns whose popu-
lation is not more than ten thousand the capital stock may be not less
than fifty thousand dollars divided into shares of the par value of one
hundred dollars each; and no business shall be transacted by the corpo-
ration until the whole amount of its capital stock is subscribed for and
actually paid in. Any such corporation may, subject to the approval
of the commissioner, increase its capital stock in the manner provided
by sections forty-one and forty-four of chapter one hundred and fifty-
six. No stock shall be issued by any such corporation until the par value
thereof shall be fully paid in in cash. Any such corporation may, subject
to the approval of the commissioner, decrease its capital stock in the
manner provided by said section forty-one and the first sentence of section
forty-five of said chapter; provided, that the capital stock as so reduced
shall not be less than the amount required by this section.
It appears to me, from the above, that G. L., c. 172, § 3,
read in the light of St. 1890, c. 315, § 2, permits a trust
company incorporated prior to 1888 to secure the powers
and privileges set forth in G. L., c. 172, § 18, even though
inconsistent with a restriction contained in the original
act of incorporation of such a trust company; that between
1905 and 1916 one of the privileges and powers thus acquir-
able would have been the power, subject to the approval of
the Board of Commissioners of Saving Banks, to increase
its capital stock up to one million dollars by the method
provided for business corporations (now G. L., c. 156, §§41
and 44) ; and that today one of those powers and privileges
is the power to increase its capital stock by a similar method
to any amount approved by the Commissioner of Banks.
I am therefore led to the conclusion that the B. M. C.
Durfee Trust Company can avoid the necessity of petitioning
the Legislature for an amendment to its charter by the
adoption of G. L., c. 172, § 18, as provided in G. L., c. 172,
§ 3, and I accordingly answer your inquiry in the affirmative.
316
OPINIONS OF THE ATTORNEY-GENERAL.
To the Com-
missioner of
Public Works.
1924
January 3.
Structures in Great Ponds — License.
A license is not required for a structure built in the waters of a great pond unless
it is below the natural high-water mark.
You request my opinion whether a Hcense is required for
the erection of a structure in the waters of a great pond,
the height of which has been raised several feet and the area
of which has been increased by the lawful construction of
a dam, the structure being above the natural high-water
mark of the pond but below the maximum flow hne caused
by the dam.
G. L., c. 91, § 13, provides, in part: —
The division may license any person ... to build and extend a wharf,
pier or shore wall beloxo high water mark in said river, or to build or extend
a wharf, pier, dam, wall, road, bridge or other structure, or to drive piles,
fill land or excavate in or over the waters of any great pond below natural
high water mark, or at or upon any outlet thereof, upon such terms as
the division prescribes; . . .
Section 19 of the act provides, in part: —
Except as authorized by the general court and as provided in this
chapter, no structure shall be built or extended, or piles driven or land
filled, or other obstruction or encroachment made, in, over or upon the
waters of any great pond below the natural high water mark; . . .
The basis of this legislation is found in St. 1888, c. 318,
§ 4, which provides that a Hcense may be issued to build a
structure, etc., in any great pond ''below high-water mark,"
and in St. 1888, c. 318, § 2, which provides that except as
authorized in the act no structure, etc., shall be built in any
great pond "below the high-water mark thereof."
In R. L., c. 96, §§ 15 and 18, which reenact St. 1888, c.
318, §§ 2 and 4, the word "natural" was inserted, so that the
law then read and now reads "below the natural high-
water mark." That the insertion of the word "natural"
was deliberate and not accidental is shown by the fact that
both G. L., c. 91, § 13, and R. L., c. 96, § 18, which provide
JAY R. BENTON, ATTORNEY-GENERAL. 317
for licenses for structures in great ponds below the natural
high-water mark, also provide for licenses for structures in
the Connecticut River "below high-water mark." The
original statute with respect to licenses for structures in
the Connecticut River (St. 1885, c. 344, § 3) read ''below
high-water mark," and this language has not been changed or
amended. It is conceivable that the Legislature, in en-
acting the sections referred to in the General Laws and
Revised Laws, would, in the same sections, have inserted
the word ''natural" with respect to great ponds and have
failed to make the insertion with respect to the Connecticut
River unless the insertion was deliberate and designed to
change the existing law.
I am therefore of the opinion that a license is not required
for a structure built in the waters of a great pond unless it is
below the natural high-water mark.
Savings Banks — Sale of Travelers' Checks and
Letters of Credit.
A travelers' cheek or letter of credit is not a transmission of money or the equivalent
thereof within the meaning of G. L., c. 168, § 33A.
You request my opinion as to whether G. L., c. 168, § 33A, ^9 t^e com-
^ "^ -^ ; 7 o 7 rnissioner of
should be so construed as to permit the sale of travelers' ^^^24
checks and letters of credit. Said section reads as follows : — • ■^'"^1^^ ^•
Savings baiilcs may, under regulations made by the commissioner, re-
ceive money for the purpose of transmitting the same, or equivalent
thereof, to another state or country.
In the broadest sense, and a sense often used by the courts,
a letter of credit is any letter whereby the writer arranges
for some other persons to obtain credit. 35 Harvard Law
Review, 542. Daniel on Negotiable Instruments, vol. 2,
6th ed., § 1790, says: —
A letter of credit may be defined to be a letter of request whereby one
person requests some other person to advance monej'^ or give credit to a
318 OPINIONS OF THE ATTORNEY-GENERAL.
third person, and promises that he will repay or guarantee the same to
the person making the advancement, or accept bills drawn upon himself
for the like amount.
See also Leggett v. Levy, 233 Mo. 590; Krakauer v. Chapman,
16 App. Div. 115.
The primary purpose of the commercial letter of credit
is to enable the shipper to receive his money upon shipment ;
to enable the buyer to postpone actual payment until the
goods have been received and resold; to enable a bank
to lend its credit and not its funds; to utilize the goods as
security in the meantime.
A travelers' letter of credit is similar in principle to a
commercial letter, but is made use of for facilitating a
supply of money required by one going to a distance or
abroad, and avoiding the risk and trouble of carrying specie
or buying bills to a greater amount than may be required.
A letter of credit is not drawn against any fund ; it is not
payable absolutely but only in the event that the letter
bearer may use it; it is optional with him. It is, as viewed
from the standpoint of the bank, simply the lending of the
bank's credit and not of its funds.
Travelers' checks are used almost exclusively by travelers.
They are generally for specific sums, and are in fact letters
of credit which a banking house gives a traveler, and which
are made available on presentation to any of the agents
or correspondents of the house in a long list of names, the
names both of the places and of the agents in them being
usually stated in the instrument itself. They may be cashed
only upon being countersigned by the person to whom they
were issued, and ordinarily only in the presence of the person
to whom they are presented for payment. It is the counter-
signature by which the holder is identified in a strange
place. If they are lost they are refunded. Like letters
of credit, they may not be used; that is optional with the
holder. He may return unused ones and be reimbursed.
The check is simply a promise of the bank to pay in the
event that it is presented and properly countersigned.
JAY R. BENTON, ATTORNEY-GENERAL. 319
James Sullivan v. Wilheim Kanuth, 220 N. Y. 216; Samburg
V. American Express Co., 136 Mich. 639.
In my opinion, a travelers' check or letter of credit is not
a transmission of money or the equivalent thereof, within
the meaning of the statute.
Abolition of Grade Crossings — Right of Towns to
A Refund from the Commonwealth for Interest
PAID.
St. 1914, c. 18, § 1, did not take away, as to grade crossing debts incurred prior
thereto, the right of a town under St. 1908, c. 390, § 2, to a refund from the
Commonwealth of the excess of the amount of interest paid by the town over
the actual cost to the Commonwealth for money borrowed for the abolition
of grade crossings.
You have brought to my attention a communication T^eSurerand
received by you from the treasurer and collector of taxes olnerai
of the city of Somerville in regard to a claim of the city Januarys.
of Somerville for refund of interest on account of grade
crossing debts.
You state that this claim is based upon the fact that the
city of Somerville has paid interest at 4 per cent upon
grade crossing debts incurred under St. 1908, c. 390, § 2,
prior to the passage of St. 1914, c. 18, § 1, amounting in all
to $18,774.95. This sum represents interest payments
made since as well as before 1914, as the rate of 4 per cent
was maintained unchanged even after 1914 as to all grade
crossing debts incurred prior to that date. The city of
Somerville now claims a refund, as provided for in St. 1908,
c. 390, § 2, equal to the difference between the amount of
interest at 4 per cent paid by it and ''the actual interest
cost to the Commonwealth for money borrowed for the
abolition of grade crossings. ..."
Upon the above facts you request my opinion as to whether
the city of Somerville has a valid claim at this time for a
refund of overpayment of interest, and if so, "to what date
shall the interest be figured."
St. 1908, c. 390, § 2, reads, in part, as follows: —
320 OPINIONS OF THE ATTORNEY-GENERAL.
The court shall, from time to time, issue its decrees for payments on
the part of the railroad corporation and on the part of any street railway
company, not exceeding the amounts apportioned to them respectively
by said auditor in his report, and for the payment by the commonwealth
of a sum not exceeding the amounts apportioned to it and to the city or
town; and such city or town shall repay to the commonwealth the amount
apportioned to it, with interest thereon, payable annually at the rate of
four per cent from the date of the acceptance of the report of the auditor.
Such repayment of the principal shall be made annually in such amounts
as the auditor of the commonwealth may designate; and the amount of
payment designated for the year, with the interest due on the outstanding
principal, shall be included by the treasurer and receiver general in the
amount charged to such city or town, and shall be assessed upon it in the
apportionment and assessment of its annual state tax. The treasurer
and receiver general shall in each year notify such city or town of the
amount of such assessment, which shall be paid by it into the treasury
of the commonwealth as a part of, and at the time required for, the pay-
ment of its state tax. When the final assessment on a city or town has
been paid by it, the treasurer arid receiver general shall repay to it, in
reduction of said final payment, the amount of interest, if any, which
has been assessed to and paid by it in excess of the actual interest cost
to the commonwealth for money borrowed for the abolition of grade
crossings previous to the payment of said final assessment.
St. 1914, c. 18, § 1, reads, in part, as follows: —
Section thirty-nine of Part I of chapter four hundred and sixty-three
of the acts of the year nineteen hundred and six, as amended by section
two of chapter three hundred and ninety of the acts of the year nineteen
hundred and eight, is hereby further amended by striking out the words
"of four per cent," in the thirty-fifth line, and inserting in place thereof
the words: — of interest determined by the auditor of the commonwealth
as approximately that paid by the commonwealth on the last money
borrowed for the abolition of grade crossings, — and by striking out the
last sentence, so as to read as follows: — Section 39. . . . The court shall,
from time to time, issue its decrees for payments on the part of the rail-
road corporation and on the part of any street railway company, not ex-
ceeding the amounts apportioned to them respectively, by said auditor
in his report, and for the payment by the commonwealth of a sum not
exceeding the amounts apportioned to it and to the city or town; and
such city or town shall repay to the connnonwealth the amount appor-
tioned to it, with interest thereon, payable annually at the rate of interest
determined by the auditor of the commonwealth as approximately that
JAY R. BENTON, ATTORNEY-GENERAL. 321
paid by the commonwealth on the last money borrowed for the abolition
of grade crossings, from the date of the acceptance of the report of the
auditor. Such repayment of the principal shall be made annually in such
amounts as the auditor of the commonwealth may designate; and the
amount of payment designated for the year, with the interest due on
the outstanding principal, shall be included by the treasurer and receiver
general in the amount charged to such city or town, and shall be assessed
upon it in the apportionment and assessment of its annual state tax.
The treasurer and receiver general shall in each year notify such city or
town of the amount of such assessment, which shall be paid by it into
the treasury of the commonwealth as a part of, and at the time required
for, the payment of its state tax.
The effect of the amendment of 1914 was to repeal by
imphcation so much of the former act as provided that the
rate of interest to be paid by a city or town should be 4
per cent, and that the excess of interest paid over actual
interest cost should finally be refunded. Wilson v. Head,
184 Mass. 515. The question is whether the amendment
is applicable to grade crossing debts incurred prior to
its enactment, on which interest was paid at the rate of
4 per cent not only before but after 1914.
Where a right to recover money is purely statutory it
has been held to be extinguished by the repeal, without
a saving clause, of that portion of the act which created it.
Wilson V. Head, supra. There are analogous cases in the
criminal law. Commonwealth v. Marshall, 11 Pick. 350.
But the amendment we are considering struck out not only
the right to repayment but also the requirement that the
rate of interest to be paid should be 4 per cent. The
substantial change made was to do away with the necessity
of repayment by providing that the rate to be paid by the
cities and towns should be determined by an approximation
to that which the Commonwealth was obliged to pay.
The natural inference is that the amendment was intended
to apply only in cases where the rate of interest was to be
determined as provided in the amendment, and was not
intended to take away the right of refund where interest
was paid under the prior statute at the flat 4 per cent rate.
322 OPINIONS OF THE ATTORNEY-GENERAL.
Furthermore, it seems that the amending act has consist-
ently in practice been construed by those charged with the
duty of carrying its provisions into effect as appUcable only
to grade crossing debts incurred subsequent to its passage,
since interest at the 4 per cent rate has uniformly been
collected on debts which arose previously. This could
only have been done on the theory that to such debts the
amendment was not applicable. Commonwealth v. Parker,
2 Pick. 550, 557; Tyler v. Treasurer and Receiver General,
226 Mass. 306. It would seem, therefore, that the mutual
obligations imposed upon the Commonwealth, on the one
hand, and the towns, on the other, by St. 1908, c. 390, § 2,
should be held to have survived the partial repeal of that
act in 1914, provided this conclusion involves no violation
of sound legal theory.
When the town's share of a given grade crossing assess-
ment was paid by the State under the provisions of St. 1908,
c. 390, § 2, there arose a definite obligation, contractual
in its nature, which, if not a true contract, was at least one
of those obligations created either by the common law,
under the impulse of equitable principles, or by statute,
which are grouped under the generic name of quasi con-
tractual obligations. This quasi debt, if it may be so
termed, contained within itself the definition of its own
incidents, namely, the duration, interest rate and rebate
feature provided for in the statute. The right to a refund
was no less inherent in it than any other feature. In
fact, strictly, the interest rate may be said to have been
"4 per cent minus a certain unascertained future rebate,"
rather than simply "4 per cent." In the absence, at least,
of any expression of legislative intent to the contrary, there
seems no reason why such a quasi debt, being an existing,
definite obligation, should not survive the repeal of the
statute under which it originally arose.
In Steamship Co. v. Joliffe, 2 Wall. 450, the Supreme Court
of the United States, in considering the right of a pilot to
the compensation provided for in a statute that had been
JAY R. BENTON, ATTORNEY-GENERAL. 323
repealed after the performance of the services in question,
said : —
If the services are accepted, a contract is created between the master
or owner of the vessel and the pUot, the terms of which, it is true, are
fixed by the statute; but the transaction is not less a contract on that
account. If the services tendered are declined, the half fees allowed are
by way of compensation for the exertions and labor made by the pilot,
. . . The transaction, in this latter case, between the pilot and the mas-
ter or owner, cannot be strictly termed a contract, but it is a transaction
to which the law attaches similar consequences; it is a guasi contract. . . .
The claim of the plaintiff below for half-pilotage fees, resting upon a
transaction regarded by the law as a quasi contract, there is no just ground
for the position that it fell with the repeal of the statute under which the
transaction was had. When a right has arisen upon a contract, or a
transaction in the nature of a contract authorized by statute, and has
been so far perfected that nothing remains to be done by the party as-
serting it, the repeal of the statute does not affect it, or an action for its
enforcement. It has become a vested right which stands independent
of the statute. And such is the position of the claim of the plaintiff
below in the present action: the pilotage services had been tendered by
him; his claim to the compensation prescribed by the statute was then
perfect, and the liability of the master or owner of the vessel had become
fixed.
And it is clear that the legislature did not intend by the repealing clause
in the act of 1864, to impair the right to fees, which had arisen under the
original act of 1861.
In my opinion, this language is applicable to the present
case; and in view of what I have already stated I believe
to be the proper inference of legislative intent to be drawn
from St. 1914, c. 18, § 1, I am of the opinion that the city
of Somerville has a valid claim at this time for a refund of
overpayment of interest, and that the amount due should
be figured to the date of the payment by the city of Somer-
ville of the final assessment.
324 opinions of the attorney-general.
Public Records — Certification of Copies — Secre-
tary OF THE Commonwealth.
Under G. L., c. 9, § 11, the precise form in which copies of public records shall
be certified is within the discretion of the certifying officer, but the copies
must be full, exact and literal: authentication by seal is impliedly authorized.
Secretary. You pequest iiiy opinion as to whether you "have the right
January 4. to Certify, Substantially in accordance with the form attached
to your request, to a birth, marriage or death."
G. L., c. 46, deals with the "Return and Registry of Births,
Marriages and Deaths." Section 1 imposes upon each city
or town clerk the duty "to receive or obtain and record"
certain specified facts "relative to births, marriages and
deaths in his town." Section 17 requires that certified
copies of such records of births, marriages and deaths be
transmitted periodically to the State Secretary. Section
18 reads: —
The state secretary shall require . . . copies transmitted under the
preceding section to be written in a legible hand.
Section 21 reads: —
The state secretary shall cause the copies received by him for each
year to be bound, with indexes thereto. He shall prepare from said
copies such statistical tables as will be of practical utihty, and make
annual report thereof to the general court.
G. L., c. 66, deals with "Public Records." Public records
are defined, in so far as is pertinent to the present inquiry,
as follows : —
Any written or printed book or paper . . . which any officer ... of
the commonwealth or of a county, city or town ... is required to re-
ceive for filing. — G. L., c. 4, § 7, par. 2Gth.
Section 10 of G. L., c. 66, provides: —
Every person having custody of any public records shall, at reasonable
times, permit them to be inspected and examined by any person, under
JAY R. BENTON, ATTORNEY-GENERAL. 325
his supervision, and shall furnish copies thereof on payment of a reasonable
fee. In towns such inspection and furnishing of copies may be regulated
by ordinance or by-law.
Section 7 of G. L., c. 66, reads, in part, as follows: —
The state secretary, clerks of the county commissioners and city or
town clerks shall respectively have the custody of all other public records
of the commonwealth or of their respective counties, cities or towns, if
no other disposition of such records is made by law or ordinance, and
shall certify copies thereof.
Finally, G. L., c. 9, § 11, provides: —
The state secretary shall have the custody of the great seal of the com-
monwealth; and copies of records and papers in his department, certified
by him and authenticated by said seal, shall be evidence like the originals.
It follows from the above : — •
1. That the certified copies of the records of births,
marriages and deaths filed pursuant to G. L., c. 46, with the
State Secretary are public documents;
2. That he is authorized to ''certify copies thereof"; and
3. That such copies, when authenticated by the great seal
of the Commonwealth, "shall be evidence hke the originals."
In my opinion, the phrase "shall certify copies thereof"
means shall make or cause to be made a full, exact and
literal copy of the record in his possession, and shall append
thereto a statement to the effect that such document is in
fact a full, exact and literal copy of the original record.
It is unnecessary to determine whether the phrase also
connotes, as an additional requirement, the authentication
of the document by affixing thereunto the official seal of the
certifying officer; that is, in the case of the State Secretary,
the seal of the Commonwealth. See Hartford Fire Ins.
Co. V. Becton & Terrell, 103 Tex. 236; 125 S. W. 883. In
any event, such authentication is not only sanctioned by
well-nigh universal practice, but is impliedly authorized
by the provision in G. L., c. 9, § 11, quoted above, as to the
effect of such authentication by the State Secretary.
326
OPINIONS OF THE ATTORNEY-GENERAL.
Within the hmits of the requirements set forth in the
preceding paragraph, the precise form in which copies of
public records shall be certified is within the discretion of
the certifying officer. I see no reason to criticize adversely
the form attached by you to your request, nor to doubt
that you "have the right to certify, substantially in accord-
ance with the form attached, to a birth, marriage or death."
I accordingly answer your inquiry in the affirmative.
Witness Fee — Expert Witnesses — Compulsory Pro-
cess — State Officers and Employees — Compen-
sation.
The term "witness fee" applies to any sum of money paid to persons subject to
compulsory process as compensation for testimony given at the trial of causes.
Expert witnesses may in all cases be compelled to appear and testify to such opin-
ions as they may have. Such witnesses cannot be compelled to make a previ-
ous study of the case or of other testimony.
State police officers and officers and employees of the Commonwealth receiving
regular compensation therefrom may not receive any compensation for testi-
fying in a cause in which the Commonwealth is a party.
Such persons may receive from counties compensation for services which they
are not by law compelled to render.
Such persons may not receive from the Commonwealth compensation for special
services unless such services are performed outside of usual working hours
and are not required in the performance of their duties.
To the District
Attorney for
the Eastern
District.
1924
January 24.
You request my opinion whether any of the persons des-
ignated in G. L., c. 262, § 56, when called by the Common-
wealth to give an expert opinion in the trial of cases upon
matters outside their regular duties, may receive an expert
fee from the county.
G. L., c. 262, § 56, provides, in part: —
A state police officer or an officer of the commonwealth whose salary
is fixed by law, or any employee of the commonwealth receiving regular
compensation therefrom, shall not he entitled to a witness fee before any
court or trial justice in a cause in which the commonwealth is a party. . . .
The act, in its scope and intent, is designed to prevent the
payment of witness fees, when the Commonwealth is a
JAY R. BENTON, ATTORNEY-GENERAL. 327
party, to persons therein designated whose attendance
and testimony at the trial of such causes can be secured by
compulsory process. The term "witness fee," as there
used, is not restricted to the statutory witness fee. It
applies to any amount of money, whether less or more
than the statutory fee, paid as compensation for, or in
consideration of, testimony given at the trial of causes
by persons who are subject to compulsory process. Any
other construction would enable one to evade the law by
the simple device of paying a sum in excess of the statutory
witness fee.
The answer to your inquiry depends upon the question
whether persons who have no knowledge of the facts per-
taining to the issues of a case and who have had no con-
nection with it, but who, by reason of their special knowl-
edge and training, may give an expert opinion based upon
hypothetical questions, can be compelled to appear and
testify. If compulsory process may issue for such persons,
then the amount paid them for testifying is a witness fee
within the purview of G. L., c. 266, § 56, and the persons
designated in that section may not lawfully receive any
compensation for so testifying. If, however, experts may
not be compelled to appear and give expert opinions, the
compensation paid them is not a witness fee.
Authorities are divided upon the question whether
experts, so called, are subject to compulsory process. Some
of the earlier cases and some English cases hold that the
special knowledge of a person is his property, which may
not be taken from him without reasonable compensation,
and that experts may therefore not be compelled to testify
as to their opinions. See Webb v. Page, 1 Car. & K. 23
(Eng.) ; Clark v. Gill, 1 Kay & J. 19 (Eng.) ; Beits v. Clifford,
Warwick Lent Assizes, 1858 (Eng.); Re Working Men's
Mut. Soc, L. R.,'21 Ch. Div. 831; In the Matter of Roelker,
Fed. Cas. No. 11,995; United States v. Howe, Fed. Cas. No.
15,404a; Buchman v. State, 59 Ind. 1; Dills v. State, 59
Ind. 15. In Pennsylvania the rule seems to be that experts
328 OPINIONS OF THE ATTORNEY-HENERAL.
are subject to compulsory process in cases where the govern-
ment is a party but not in causes between private Htigants.
Pa. Co. for Insurances v. Philadelphia, 262 Pa. 439. The
weight of authority, however, inchnes to the view that
experts are treated Hke ordinary witnesses, that they can be
compelled to appear in all cases and testify as to such
opinions as they have, and that such compulsion is not
a taking of their property. Barms v. Phaneuf, 166 Mass.
123, 124; Stevens v. Worcester, 196 Mass. 45, 56; Ex Parte
Dement, 53 Ala. 389, 393; Flinn v. Prairie County, 60 Ark.
204, 227; People v. Conte, 17 Cal. App. 771, 784; Cotmty
Com. V. Lee, 3 Colo. App. 177, 180; Dixon v. The State, 12
Ga. App. 17; Dixon v. People, 168 111. 179; O'Day v. Crabb,
269 111. 123, 132; Burnett v. Freeman, 125 Mo. App. 683;
State V. Bell 212 Mo. Ill, 126; State v. Teipner, 36 Minn.
535; Mai7i v. Sherman Co., 74 Neb. 155; People v. Mont-
gomery, 13 Abb. Pr. Rep. (N. S.) 207, 238; Summers v.
State, 5 Tex. App. 365, 377; Philler v. Waukesha Co., 139
Wis. 211; Wigmore on Evidence (2nd ed.). Vol. IV, § 2203;
Rogers on Expert Testimony (2nd ed.), § 188; 2 A. L. R.
1576.
In Stevens v. Worcester, 196 Mass. 45, 56, the court, in
holding that a witness who had already testified to facts
within his knowledge could be compelled to express an
expert opinion, if he had one, said: —
The auditor rightly ruled that the witness Eddy, being upon the stand,
could be required to express an opinion, if he had one, and that he could
not be compelled to study the case or perform labor in order to qualify
him to express an opinion. As the witness had formed an opinion which
he had committed to a paper which he had with him on the stand, the
requirement that he should take the paper in his hand and examine it,
to refresh his recollection, was not different in substance or legal effect
from a requirement that he should use his mental faculties in listening
to a question and in reflecting upon it, in order to give a proper answer.
... It was not like a requirement that he should study a treatise on a
scientific subject.
JAY R. BENTON, ATTORNEY-GENERAL. 329
In Barrus v. Phaneuf, 166 Mass. 123, 124, 125, the court,
strongly intimating that it had power to compel attendance
of expert witnesses, said : —
We should be slow to admit that the court would be without power
to require the attendance of a professional or skilled witness, upon a
summons duly served, and with payment of the statutory fees, although
he was unacquainted with the facts, and coukl testify only to opinions;
but sucli power would hardly be exercised unless, in the opinion of the
court, it was necessary for the purposes of justice. . . . Even in such
case the court would probably be without the power to compel the wit-
ness to make a study of the case beforehand, or to pay attention to the
body of evidence introduced by the parties with a view to forming an
opinion thereon. It would seem that one who is summoned as an expert
would perform all that the court could require of him if he should hold
himself in readiness to be called upon to testify to such opinions as he
might have, when his turn should come.
I am therefore of the opinion, in the light of the author-
ities, that in this Commonwealth professional or skilled
witnesses may, in the trial of all causes, be compelled to
appear and give their expert opinions, if they have anj^,
even though they have no knowledge of the facts pertaining
to the issue involved and have had no connection with the
case. It follows that State police officers, officers of the
Commonwealth whose salaries are fixed by law, and em-
ployees of the Commonwealth receiving regular compen-
sation therefrom, may not receive any fee or compensation
for testifying before any court or trial justice in a cause in
which the Commonwealth is a party.
In many cases, however, the testimony of an expert would
be valueless if his opinion were not based upon some study
of the case beforehand or upon some previous examination
or observation of the defendant. In many cases where
the defence is based upon insanity the prosecuting officer
requires the assistance of a psychiatrist in the preparation
of the case and in the examination of witnesses. Though
an expert can be compelled to testify to such opinions as
he may have when he is called to the stand, he cannot be
330 OPINIONS OF THE ATTORNEY-GENERAL.
compelled to make any previous study of the case or to
render any assistance or even to listen to other testimony.
In cases, therefore, which require preparation or prior
study, or where assistance other than the mere testimony
of the witness is desired, officers and employees of the
Commonwealth designated in G. L., c. 262, § 56, may receive
from counties compensation for services which they are
not by law compelled to render. Such compensation is
not a "witness fee" within the meaning of the act.
Where such services are to be paid for from the treasury
of the Commonwealth a different situation arises. G. L.,
c. 29, § 31, provides, in part, that "salaries payable by the
commonwealth . . . shall be in full for all services rendered
to the commonwealth by the persons to whom they are
paid." That act prohibits a person, receiving a salary
from the Commonwealth, from accepting any other com-
pensation from the Commonwealth for any services rendered
during the usual hours of employment in the salaried
position which he occupies. Such person may not accept
another salaried position from the Commonwealth, even
though the work of the second office might be done outside
of the usual hours of employment of the first office. See
G. L., c. 30, § 21. He may, however, receive from the
Commonwealth additional compensation for special services
performed outside of the usual working hours of his position
and not required in the performance of the duties of his
position. See also, II Op. Atty. Gen. 21 and 309; V Op.
Atty. Gen. 697, 698.
Persons receiving salaries from the Commonwealth may,
therefore, not receive any additional compensation from the
treasury of the Commonwealth for special services rendered
as experts, unless such services are performed outside of
the usual working hours of their employment and are not
required in the performance of the duties of the positions
which they hold.
jay r. benton, attorney-general. 331
Constitutional Law — Liberty of Contract — Equal
Protection of the Laws • — Boston Elevated Rail-
way Company — Eastern ^Massachusetts Street
Railway Company.
Legislative power to secure the public safetj', health and morals canuot be con-
tracted awaj\
Certain bills, if enacted, would be unconstitutional, for reasons stated.
A bill forbidding the emplojonent of aliens by the Boston Elevated Railway Com-
pany, if enacted, would be an infringement of libertj' of contract and arbi-
trarily discriminatory and would therefore be unconstitutional.
A bill requiring the Eastern Massachusetts Street Railway Company to maintain
and keep in repair the portion of highways occupied by its tracks, if enacted,
would be arbitrarily discriminatory, and therefore unconstitutional.
resentatives.
1924
Januarv 25.
On behalf of the committee on rules you have asked my HoiSe of Rep-
opinion as to the constitutionaUty of several bills, now ""^TgH'
pending before the committee, relating to the Boston
Elevated Railway Company or to the Eastern IVIassa-
chusetts Street Railwaj^ Company.
In recent years the opinion of the Attorney-General has
on several occasions been required on questions concerning
the constitutionality of proposed laws relating to the man-
agement and operation of those companies, and involving
a consideration of the appUcation and effect of Spec. St.
1918, c. 159, and Spec. St. 1918, c. 188. See VI Op. Atty.
Gen., 146, 396; VII Op. 11. In these opinions the Attorney-
General rules that the provisions in each of those statutes
giving to the trustees the right to regulate and fix fares
and to determine the character and extent of the service
and facilities to be furnished constituted contracts between
the Commonwealth and the companies concerned which
could not be unpaired without violating their constitutional
rights, and that a number of the bills submitted would,
if enacted into law, be unconstitutional because they
contained pro^dsions which would directly impair the
contractual rights given by the two special statutes of 1918.
With respect to Spec. St. 1918, c. 159, the court has held,
in Boston v. Treasurer and Receiver General, 237 Mass. 403,
413, that the statute, having been accepted by the Boston
332 OPINIONS OF THE ATTORNEY-GENERAL.
Elevated Railway Company, constitutes a binding agree-
ment between the company and the Commonwealth,
according to its terms, and that it is constitutional. The
court points out that the terms of the act are contractual
in their nature, as is plain not only from the general scope
of the act but from the express provision, in section 18, that
"the provisions which define the terms and conditions
under which, during the period of public management and
operation, the property owned, leased or operated by the
Boston Elevated Railway Company shall be managed and
operated by the said trustees, and the provisions of section
thirteen, . . . shall constitute a contract binding upon
the Commonwealth."
But the right of the companies to insist that the con-
tractual obligations of the Commonwealth with respect
to the powers and duties of the trustees shall not be im-
paired by new legislation is not violated by the legitimate
exercise of legislative power in securing the public safety,
health and morals, since the governmental power of self-
protection cannot be contracted away. Neiv York & New
England R.R. Co. v. Bristol, 151 U. S. 556, 567. The limits
of this power of which the Legislature cannot divest itself
are not clearly defined. It is not co-extensive with the
pohce power of the State. The right to regulate fares of
transportation companies may be affected by contract with
the State. Stone v. Farmers' Loan & Trust Co., 116 U. S.
307, 325; Minneapolis v. Minneapolis St. Ry. Co., 215 U. S.
417; III Op. Atty. Gen. 396. An instructive discussion
of the subject appears in New Orleans Gas Co. v. Louisiana
Light Co., 115 U. S. 650, 660-673.
I will now state my opinion in regard to the specific bills
which you have submitted.
1. Petition that the Boston Elevated Railway Company be
prohibited from employing aliens while under the period of
public management and control.
The bill accompanying the petition is as follows : —
JAY R. BENTON, ATTORNEY-GENERAL. 333
An Act forbidding the Employment of Aliens by the Boston
Elevated Railway Company.
Section 1. No person shall be employed by the Boston Elevated
Railway Company during the period while under the public management
and control provided by chapter one hundred and fifty-nine of the Special
Acts of nineteen hundred and eighteen, who is not a citizen of the United
States.
Section 2. This act shall not apply to the emplojanent of anj^ alien
who at the time of its passage is in the service of such company, provided
that such alien makes the primary declaration of intention to become a
citizen of the United States within ninety days thereafter.
The right to purchase or to sell labor is part of the liberty
of contract protected by the Fourteenth Amendment to
the Constitution of the United States, which cannot be
interfered with by a State beyond the limits of reasonable
regulation, in the exercise of its police power. The amend-
ment protects the right of the employer as well as of the
employee, and the employer is equally entitled to rely upon
its provisions. Lochner v. New York, 198 U. S. 45, 53;
Adair v. United States, 208 U. S. 161, 173-175; Coppacje v.
Kansas, 236 U. S. 1, 14; Adkins v. Children's Hospital, 261
U. S. 525, 545; Opinion of the Justices, 208 Mass. 619;
Opinion of the Justices, 220 Mass. 627; Commomvealih v.
Boston & Maine R.R., 222 Mass. 206; Bogni v. Perotti,
224 Mass. 152.
A statute prohibiting the employment of aliens in common
occupations has been held to be repugnant to the Fourteenth
Amendment, under which an alien who is lawfully an in-
habitant of a State is entitled to the equal protection of its
laws. Truax v. Raich, 239 U. S. 33; cf. Opinion of the
Justices, 207 Mass. 601.
Statutes providing for the giving of preference to citizens
of States and for discrimination against aliens in employ-
ment on public works by a State or a political subdivision
thereof have been held to be constitutional, by application
of the principle that a State, having control of its own
affairs, has the right to prescribe the conditions upon which
it will permit public work to be done on its behalf or on
334 OPINIONS OF THE ATTORNEY-GENERAL.
behalf of its municipalities. Heim v. McCall, 239 U. S.
175, 191-193; Crane v. New York, 239 U. S. 195; Lee v.
Lynn, 223 Mass. 109.
The Boston Elevated Railway Company, however, is not
a governmental subdivision of the State; it is only a public
service corporation. To such corporations the protection
of the Fourteenth Amendment in respect to the employment
of labor was extended in several of the cases cited above.
It is my opinion that the proposed law, if enacted, would be
unconstitutional because it would deprive the railway com-
pany, and aliens employed or seeking employment by it,
of that liberty of contract with respect to labor, which is
protected by the Fourteenth Amendment.
The proposed law, in my judgment, is objectionable, also,
because it applies to the Boston Elevated Railway Company
alone, and is arbitrarily discriminatory, and denies to that
corporation the equal protection of the laws, in violation of
the Fourteenth Amendment. Legislation applicable to a par-
ticular class will be sustained if a reasonable basis for the
distinction can be found; but it will not be sustained where
the distinction or discrimination is purely arbitrary. Classi-
fications and distinctions must be based upon some sound
reason. Connolly v. Union Sewer Pipe Co., 184 U. S. 540,
558-560; Interriational Harvester Co. v. Missouri, 234 U. S.
199,210-215; Truax v. Raich, 239 V. S. S^, 39^3; Tanner
V. Little, 240 U. S. 369; Hall v. Geiger-Jones Co., 242 U. S.
539, 555-557; Buchanan v. Warley, 245 U. S. 60, 73-81;
Commonwealth v. Interstate, etc., St. Ry. Co., 187 Mass. 436,
438, 439; Commonwealth v. Hana, 195 Mass. 262, 266-268;
Commonwealth v. Titcomb, 229 Mass. 14; Massachusetts
General Hospital v. Belmont, 233 Mass. 190, 200-202;
V Op. Atty. Gen. 56. Where a statute is directed against
a particular corporation it may still be justified as founded
upon a reasonable classification, and so not in violation
of the right to equal protection of the laws. Railroad Co.
V. Richmond, 96 U. S. 521, 529. It is sometimes supported
as an exercise of the power to amend the charter of the
JAY R. BENTON, ATTORNEY-GENERAL, 335
corporation. New York & New England R.R. Co. v. Bristol,
151 U. S. 556, 567; Selectmen of Brookline, petitioners, 236
Mass. 260, 270-272; of. Prudential Ins. Co. v. Cheek, 259
U. S. 530, 536, 544. But such a statute will be held to be
unconstitutional if the selection is arbitrary and unreason-
able. Cotting v. Kansas City Stock Yards Co., 183 U. S.
79, 102-112. See, also, McLean v. Arkansas, 211 U. S.
539, 551. In my opinion, to single out the Boston Elevated
Railway Company and apply to it a regulation prohibiting
the employment of aliens would, on its face, be unfair and
arbitrary, and would violate the company's constitutional
rights.
The measure seems to be objectionable for the additional
reason that it is an impairment of the company's con-
tractual right, given by Spec. St. 1918, c. 159, to have its
property managed and operated by the trustees, not justified
as a reasonable exercise of the power of the State to secure
the health, morals or safety of its people. Proper man-
agement and operation of the road might be seriously
interfered with by such a regulation. On this account,
also, I must hold the proposed law to be unconstitutional.
2. Petition that the board of trustees of the Boston Elevated
Railway Company be required to advertise for bids on certain
contracts.
The bill accompanying the petition is as follows : —
An Act requiring the Board of Trustees of the Boston Elevated
Railway Company to publicly advertise for Bids on Certain
Contracts.
The board of trustees of the Boston Elevated Railway Company shall
advertise in two or more daily newspapers published in Boston for sealed
proposals for all construction work or materials involving an expense of
more than . . . dollars, stating the time and place for opening such
proposals ,and reserving the right to reject any and all proposals. At
the time and place advertised for the opening of proposals all bona fide
bidders shall be admitted.
Whether a general statute requiring street railway com-
panies to advertise for bids for construction work or materials
336 OPINIONS OF THE ATTORNEY-GENERAL.
would be unconstitutional, as an unwarranted interference
with the right of such corporations to make contracts and
carry on their business, as formulated and defined in cases
already cited, need not now be determined. See Prudential
Ins. Co. V. Cheek, 259 U. S. 530. In my opinion, the pro-
posed law would be unconstitutional because in its particular
application to the Boston Elevated Railway Company it
imposes upon that corporation a burden not borne by other
corporations of a similar class, and therefore denies to it
the equal protection of the laws; and also because such a
provision would be in violation of the contractual right,
with respect to the management and operation of the com-
pany's property, established by Spec. St. 1918, c. 159.
3. Petition that the Boston Elevated Railway Company be
directed to remove the subway entrances and exits at Scollay
Square and Adams Square in the city of Boston.
The bill accompanjdng the petition is as follows: —
An Act to compel the Boston Elevated Railway Company to
abolish the present entrances and exits to the scollay
Square and Adams Square Subway Stations.
The Boston elevated railway company is hei'eby directed to remove
on or before January 1, 1925, the present subway entrances and exits
at Scollay Square and Adams Square in the city of Boston.
This legislation is apparently proposed as an exercise
of the power to enforce regulations to secure the public
safety, which in other cases has been held valid. New York
& New England R.R. Co. v. Bristol, 151 U. S. 556; Baltimore
V. Baltimore Trust Co., 166 U. S. 673; New Orleans Gas Co.
V. Drainage Commission, 197 U. S. 453; Northern Pacific
Ry. Co. V. Duluth, 208 U. S. 583; Denver & R. G. R.R. Co.
V. Denver, 250 U. S. 241. Whether it is required for that
reason is for the General Court to determine. If, however,
the Boston Elevated Railway Company has no title or
right in the premises giving it the power to remove the sub-
way entrances and exits referred to in the bill, obviously
it cannot be compelled by the Legislature to effect such
JAY R. BENTON, ATTORNEY-GENERAL. 337
removal. I had supposed that the title to these entrances
and exists was in the city of Boston, and that the Boston
Elevated Railway Company had no right which would
entitle it to act. As to that question I am not sufficiently
advised to give an authoritative opinion.
4. Petition that the Boston Elevated Railway Company
he directed to maintain toilets in the stations of the company.
The bill accompanying the petition is as follows : —
An Act directing the Boston Elevated Railway Company to main-
tain Toilets in the Stations of the Company.
The Boston elevated railway company shall keep and maintain reason-
able toilet facilities for both men and women on all stations maintained
by said railway company which shall be kept open at all times, that said
railway station is kept open, for the convenience of its patrons.
The questions presented by this bill are similar to those
presented by the bill last considered. Some' such pro-
vision may be supported as a health measure, the need for
which may be found by the General Court to justify the
regulation. Whether the company has sufficient control
of the premises occupied by its stations to be able to carry
out the requirements of the bill is a matter about which I
am not advised. I would suggest, also, that the meaning
of the word ''station" is somewhat indefinite, and that it
might be construed to extend to any structure maintained
for the protection of passengers while waiting for the com-
pany's cars.
5. Petition that the Eastern Massachusetts Street Railway
Company be compelled to maintain a^id keep in repair the
portion of highways occupied by its tracks.
The bill accompanying the petition is as follows : —
An Act to compel the Eastern Massachusetts Street Railway
Company to maintain and keep in Repair the Portion of High-
ways OCCUPIED BY ITS TRACKS.
Section 1. During the period of public operation of the Eastern
Massachusetts Street Railway Company under the provisions of chapter
one hundred and eighty-eight of the Special Acts of nineteen hundred
338 OPINIONS OF THE ATTORNEY-GENERAL.
and eighteen and acts in amendment thereof and supplementary thereto,
the Eastern Massachusetts Street Railway Company shall keep in repair
to the satisfaction of the superintendent of streets, street commissioners,
' road commissioners or surveyors of highways, or the division of highways
of the department of public works, in the case of state highways, or the
metropolitan district commission, in the case of metropolitan boulevards,
the paving, upper planking or other surface material of the portions of
streets, roads and bridges occupied by its tracks; and if such tracks occupy
unpaved streets or roads, shall, in addition, so keep in repair eighteen
inches on each side of the portion occupied by its tracks, and shall be
liable for any loss or injury that any person may sustain by reason of the
carelessness, negligence, management and use of its tracks.
Section 2. When a party upon the trial of an action recovers dam-
ages of the commonwealth or of a city or town for an injury caused to his
person or property by a defect in a street, highway or bridge occupied
by the tracks of said company, if said company is liable for such damages,
and has had reasonable notice to defend the action, the commonwealth,
city or town may recover of the said company, in addition to the damages,
all costs of both plaintiff and defendant in the action.
Section 3. This act shall take effect upon its passage.
My opinion was asked last year regarding the consti-
tutionality of a measure, in some respects similar, relating
to the Boston Elevated Railway Company. (VII Op.
Atty. Gen. 11.) In response to that request I stated my
opinion to be that the bill, if enacted into law, would be
constitutional, and an act was passed (St. 1923, c. 358)
substantially identical with the bill which was referred to
me.
As I pointed out in that opinion, St. 1897, c. 500, amending
the charter of the Boston Elevated Railway Company,
contained in section 10 a provision, in substance, that for
a period of twenty-five years the company should not be
subjected to taxes or excises not then in fact imposed upon
street railways, with an exception not now material, nor
any other burden, duty or obligation not imposed by general
law on all street railway companies, but during that period
should pay taxes imposed by general law as if it were a
street railway company, and also an additional tax; and
this provision was always regarded as a contract between
JAY R. BENTON, ATTORNEY-GENERAL. 339
the State and the company. At the time this statute was
enacted street railway companies were required to keep
in repair the portions of streets and bridges occupied by
their tracks; but in the following year, by St. 1898, c. 578
(see G. L., c. 63, §§ 61-66), that obligation was discontinued,
and the companies were required instead to pay an additional
excise tax for the benefit of municipalities in which they
were operating, to be applied to the construction, repair
and maintenance of public ways. The Boston Elevated
Railway Company was excepted from the operation of the
act, doubtless because of the contract contained in St.
1897, c. 500, § 10, relieving it, for the period named, of the
burden of taxes imposed by subsequent legislation. The
proposed law seemed to me to violate no right given or
protected by Spec. St. 1918, c. 159, and to be otherwise
free from constitutional objection, because it merely con-
tinued the obligation under which the Boston Elevated
Railway Company had operated for many years, and
continued, also, the exemption of that company from
liability to pay those taxes which in the case of other com-
panies had been substituted for the obligation to keep in
repair.
The Eastern Massachusetts Street Railway Company was
organized under Spec. St. 1918, c. 188, with all the powers
and privileges of a street railway company organized under
general laws, so far as applicable. Section 20 of said act
provides, in part, as follows : —
The new company, during the continuance of the war and for a period
of two years thereafter, shall not be required, except with the express
approval of the pubhc service commission after a hearing, to pay any
part of the expense of the construction, alteration, maintenance or repair
of any street, highway or bridge or any structure maintained or placed
therein or thereon, or of the abolition of any grade crossing or the re-
moval of wires from the surface of any street or highway to an under-
ground conduit or other receptacle, and shall not, without such approval,
be required directly or indirectly to make any payment or incur any ex-
pense whatsoever for or in connection with the construction, alteration,
340 OPINIONS OF THE ATTORNEY-GENERAL.
maintenance or repair of any street, highway or bridge, or the abolition
of any grade crossing or the removal of wires: . . .
In my opinion of last year I stated my view to be that the
law then under consideration violated no rights given or
protected by Spec. St. 1918, c. 159. In my judgment,
it is even more clear that the proposed law, as to which you
have asked my opinion, violates no rights given or protected
by Spec. St. 1918, c. 188. There is, however, a much more
serious question whether the proposed law, if enacted,
would not be so arbitrarily and unreasonably discriminatory
as to violate the company's constitutional rights. The
Eastern Massachusetts Street Railway Company has always
been and now is subject to the excise tax first laid by St.
1898, c. 578, the object of which is to recompense mu-
nicipalities, either wholly or in part, for the expense of the
construction, maintenance and repair of public ways through
which their hues run. The bill does not purport to free
the Eastern Massachusetts Street Railway Company from
that burden; but that company is singled out as one which
is to be required not only to pay the tax imposed for the
purpose of providing funds for the repair of roads, as I
have explained, but also to keep in repair a portion of those
ways. Unless there is some reasonable basis for this
discrimination the bill cannot be sustained. No reasonable
ground is apparent to me. On the face of the bill as it
appears before me I must therefore advise you that, in my
opinion, it would be unconstitutional if enacted.
jay r. benton, attorney-general. 341
Veteran — Settlement — "Actually resided."
Under St. 1922, c. 177, the place of settlement of a person inducted into the mili-
tary forces of the United States under the Federal Selective Service Act is
the place where he "actually resided" or was living at the time of his induc-
tion, as distinguished from the place of legal residence or domicil.
You request my opinion in regard to the legal settlement m?ssioner°of
of a discharged veteran of the World War upon the basis Pensions. ^"
. . . 1924
of the following facts: A man who had a derivative settle- January 25.
ment in Lynn, through his mother, moved with his family
to Marlborough on December 29, 1915. In 1917 he deserted
his family and w^ent to West Springfield Street, Boston, to
live. While living at 232 West Springfield Street, Boston,
he enrolled for the draft and was inducted at Boston, July
22, 1918, giving at that time as his residence 573 Essex
Street, Lynn, Mass. For three or four days prior to his
induction he was visiting his brother in Lynn at that address.
On July 18, 1918, four days prior to the date of his induction,
he was living (according to the statement of the Marlborough
overseers) in Boston. On November 23, 1918, he was
honorably discharged from the service. His family have
remained at all times in Marlborough.
On the basis of the above facts you request my opinion
as to whether, under St. 1922, c. 177, he acquired a military
settlement at:
(1) The place at which he was visiting his brother at the
time of his induction into the military service, and which
he gave as his residence at that time, i.e., Lynn; or
(2) The place of residence of his wife and children since
1915, i.e., Marlborough;
(3) ''The actual place of his residence at the time of en-
rollment for the draft and . . . from which he was in-
ducted," i.e., Boston.
That portion of St. 1922, c. 177, appUcable to the present
situation reads as follows : —
Any person who was inducted into the military or naval forces of the
United States under the federal selective service act, . . . whether he
served as a part of the quota of the commonwealth or not, . . . shall be
342 OPINIONS OF THE ATTORNEY-GENERAL.
deemed to have acquired a settlement in the place where he actually
resided in this commonwealth at the time of his induction or enlistment.
The settlement of the soldier in question was, therefore,
the "place where he actually resided in this commonwealth
at the time of his induction." The question presented is
as to the proper construction of the words ''actually resided."
It is well settled that the word "resided," as used in
statutes relative to the acquisition of a settlement in this
Commonwealth, means, "domiciled." Stoughton v. Cam-
bridge, 165 Mass. 251; Palmer v. Hampden, 182 Mass. 511;
Whately v. Hatfield, 196 Mass. 393.
In my opinion, however, the phrase "actually resided"
connotes something different from legal residence, in the
strict sense of domicil.
The phrase "actually resided" first appears in the present
connection in St. 1870, c. 392, § 3. St. 1865, c. 230, conferred
a settlement upon a soldier who had been enlisted and
mustered as a part of the quota of a town, who was an in-
habitant of that town and had resided therein six months
before his enlistment. St. 1868, c. 328, struck out the
requirement that the soldier should have been a resident
of the town for six months. St. 1870, c. 392, § 3, struck out
the requirement that the soldier should have been an in-
habitant of the town of whose quota he formed a part.
Section 5 of the same act provided that any person who
would otherwise be entitled to a settlement under the third
section of the act, but who was not a part of the quota of
any city or town, should, if he served as a part of the quota
of the Commonwealth, "be deemed to have acquired a
settlement in the city or town where he actually resided
at the time of his enlistment." As is pointed out in Brockton
v. Uxbridge, 138 Mass. 292, 296, in striking out the need for
inhabitancy in the town of whose quota the soldier formed
a part, section 3 of St. 1870, c. 392, proceeded upon the
theory that the town received the benefit of his military
services and should therefore bear the burden of his military
JAY R. BENTON, ATTORNEY-GENERAL. 343
settlement, even though he was not an inhabitant; that is,
even though he was not legally domiciled in that town or,
presumably, even within the Commonwealth. By similar
reasoning the fifth section of the act may be presumed to
have gone on the theory that if the Commonwealth received
the benefit of his military services some town within the
Commonwealth should bear the burden of his military
settlement, even though he was legally domiciled outside
of Massachusetts; and that the proper town upon which
to impose this burden was the one in which the soldier had
"actually resided" at the time of his enlistment.
In 1919 the Legislature inserted into the law as it then
stood a provision in regard to the military settlement of
soldiers inducted into the military service of the United
States during the World War (Gen. St. 1919, c. 333, § 5).
In so doing, the phrase "actually resided" was again em-
ployed. It is to be presumed that that phrase, as applied
in the act of 1919 to soldiers inducted under the draft, had
the same significance that it had in the existing law as ap-
plied to soldiers who voluntarily enlisted. The provision as
to the settlement of soldiers inducted under the draft during
the World War was re-enacted, with minor modifications,
as G. L., c. 116, § 1, par. 5; and finally as St. 1922, c. 177.
As has been stated above, it is the true meaning of the phrase
"actually resided," in this act, that is the subject of the
present inquiry.
In addition to the reason, supplied by a study of its legis-
lative history, for believing that the phrase "actually
resided" means something other than "was domiciled,"
that belief is supported by a number of cases which dis-
tinguish between the conception of "actual residence,"
on the one hand, and "legal residence" or "domicil," on
the other. Bradley v. Frazer, 54 la. 289 ; Tipton v. Tipton,
87 Ky. 243; Fitzgerald v. Arel, 63 la. 104; In re Brannock,
131 Fed. 819; Michael v. Michael, 34 Tex. Civil App. 630.
See, also, Martin v. Gardner, 240 Mass. 350, and cases cited
at the foot of page 353.
344 OPINIONS OF THE ATTORNEY-GENERAL.
In my opinion, "actually resided" is used in St. 1922, c.
177, in contrast, on the one hand, to legal residence, i.e.,
domicil; and on the other, to the situation suggested by
such phrases as "temporarily sojourning," "merely visiting,"
etc., i.e., mere physical presence. It means the place in
which at the time of his enlistment the soldier was actually
living, in contradistinction to the place in which he merely
happened to be; and apart from any question of his in-
tentions as to the future.
Applying this interpretation of the phrase "actually
resided" to the facts supplied by you, it seems clear that the
soldier in question acquired a legal settlement in Boston
at the time of his induction into the military service. The
question is, of course, purely one of fact in each instance.
Treating, however, as I must, the case put by you as one to
be determined upon the facts as stated, no other conclusion
seems possible in view of the statements that the soldier
"went to West Springfield Street, Boston, to live"; that
"while living at 232 West Springfield Street, Boston, he
enrolled for the draft and was inducted at Boston, July 22,
1918"; that he was merely "visiting his brother ... in
Lynn three or four days prior to his induction"; and that
"Boston (was) the actual place of his residence at the time
of enrollment for draft."
Savings Banks — Dividends.
A savings bank is not required, even if its earnings are sufficient, to pay a regular
dividend of five per cent.
mtsskTnM"^" You request my opinion on this question: Should not a
"^"1924 savings bank be obliged to pay regular dividends out of
— ^ ■ current earnings for a period of twelve months, up to the
five per cent limitation, before it can pay an extra dividend
or permit the profit and loss and guaranty fund to exceed
ten and one-quarter per cent?
G. L., c. 168, § 47, provides :—
JAY R. BENTON, ATTORNEY-GENERAL. 345
The income of such corporation, after deducting the reasonable ex-
penses incurred in the management thereof, the taxes paid, and the
amount set apart for the guaranty fund, shall be divided among its de-
positors, or their legal representatives, at times fixed by its by-laws, in
the following manner: an ordinary dividend shall be declared every six
months from income which has been earned, and which has been collected
during the six months next preceding the date of the dividend, except
that there may be appropriated from the earnings remaining undivided
after declaration of the preceding semi-annual dividend an amount suffi-
cient to declare an ordinary dividend at a rate not in excess thereof; but
the total dividends declared during any twelve months shall not exceed
the net income of the corporation actually collected during such period,
except upon written approval of the commissioner. Dividends may be
declared oftener than every six months as provided in section seventeen
of chapter one hundred and sixty-seven. . . . Ordinary dividends shall
not exceed the rate of five per cent a year. No ordinary dividend shall
be declared or paid except as above provided, . . .
G. L., c. 168, § 50, provides: —
Whenever the guaranty fund and undivided net profits together
amount to ten and one quarter per cent of the deposits after an ordinary
dividend is declared, an extra dividend of not less than one quarter of
one per cent shall be declared on all amounts which have been on deposit
for the six months, or not less than one eighth of one per cent on all
amounts which have been on deposit, for the three months, preceding
the date of such dividend, and such extra dividend shall be paid on the
day on which the ordinary dividend is paid; but in no case shall the
payment of an extra dividend as herein provided reduce the guaranty
fund and undivided profits together to less than ten per cent of the de-
posits.
In my opinion, the meaning of these two sections, so far
as pertinent to your inquiry, is as follows: A savings bank
may not declare an "extra" dividend in addition to an
"ordinary" dividend unless its guaranty fund plus its un-
divided net profits, after deducting the amount of the
ordinary dividend, amounts at least to ten and one-quarter
per cent, and exceeds ten per cent by at least the amount
of the proposed extra dividend. In other words, a savings
bank is not authorized to declare a one-half per cent extra
dividend unless, after deducting the amount of the "ordi-
346 OPINIONS OF THE ATTORNEY-GENERAL.
nary" dividend declared by it, its guaranty fund plus un-
divided net profits equals ten and one-half per cent of its
deposits.
There is nothing in the various changes and modifications
of G. S., c. 57, § 147, and St. 1876, c. 203, §§ 14 and 16,
which have resulted in G. L., c. 168, §§ 47 and 50, nor in
the present wording of that act, to suggest that a savings
bank which, for example, in a given period has made a net
profit of four and one-half per cent, and which has on hand
its full five per cent guaranty fund and five per cent net
profits in addition, is compelled to declare a four and one-
half per cent "ordinary" dividend or is prohibited from
declaring instead an ''ordinary" dividend of four per cent
followed by an "extra" dividend of one-half per cent.
I am therefore constrained to answer the question pro-
pounded by you in the negative.
School Pupils — Transportation — Classification of
Pupils entitled to Reduced Fare on Street Rail-
ways.
With the exception of pupils in private schools and colleges which furnish a more
advanced form of education than the equivalent of a public high school course,
and pupils of a single class conducted independently without reference to
other groups or classes having a common management, pupils who attend the
public schools or private schools whose curriculum is similarly limited and
pupils of vocational schools subject to G. L., c. 74, are entitled to the special
rate of fare on street or elevated railways provided by G. L., c. 161, § 108.
mi8sU)n^r°.^' You rcquest my opinion upon certain matters relating
Education. ^^ ^-^Q trausportatlou of school pupils under the provisions
January 31. of G. L., C. 161, § 108.
Under the provisions of the statutes prior to St. 1906, c.
479, the requirement of a half fare rate on street railways
had been applied by the Legislature only as to pupils of
the public schools. This was extended by the said chapter
to include the pupils of private schools as well.
In the case of Commonwealth v. Connecticut Valley St. Ry.
JAY R. BENTON, ATTORNEY-GENERAL. 347
Co., 196 Mass. 309, decided in 1907, the Supreme Court
construed the meaning of the word "pupils," as used in the
statute of 1906, with relation to other provisions of the laws
then in force, and determined that the meaning of the
word "pupils," as used in the statute, with relation to public
and private schools, was confined to the children and youths
who attended the public day schools, including the high
schools, set forth in R. L., c. 42, §§ 1, 2, 4 and 8 (now G. L.,
c. 71, §§ 1-5), and private schools which corresponded in
their educational scope with such public day and high
schools. Colleges, technical and professional schools of
more advanced learning were said by the court not to be
within the contemplation of the act.
The limitations upon the subjects to be taught in the
most advanced of the public schools are set forth now in
G. L., c. 71, §§ 1-5, substantially as they were at the time
of the court's decision as to R. L., c. 42, § 1, and only private
schools whose curriculum is similarly limited come within
the purview of G. L., c. 161, § 108. If a private secondary
school furnishes no more advanced educational facilities
than those which are substantially the equivalent of the
training provided by the public high schools, its pupils
will be entitled to the lower rate of fare set forth in the
statute. The pupils of a college, which presumably furnishes
a more advanced form of education than the equivalent
of a high school course, will not be entitled to the lower
rate of fare.
St. 1910, c. 567, added to the school pupils enumerated
in preceding statutes, who were to be carried at a lower
rate of fare than other passengers, those of "industrial day
or evening schools organized under the provisions of chapter
five hundred and five of the acts of the year nineteen hundred
and six and acts in amendment thereof," and the present
act has substituted for this latter designation that of pupils
of "vocational schools subject to chapter seventy-four of
the General Laws."
Chapter 74, under the heading "Vocational Schools,"
348 OPINIONS OF THE ATTORNEY-GENERAL.
section 1, defines "vocational education" as "education of
which the primary purpose is to fit pupils for profitable
employment." It further defines "agricultural education,"
"industrial education" and "household arts education" as
forms of vocational education. It would follow, then, that
a pupil in any school provided for by chapter 74 and devoted
to agricultural, industrial or household arts education,
was a pupil of a vocational school within the meaning of
G. L., c. 161, § 108, and was entitled to the advantages of
the requirement as to lower fares.
An "independent household arts school," provided for
by chapter 74, is defined in the first section of the chapter as
"a vocational school," and its pupils are likewise to be in-
cluded in the terms of G. L., c. 161, § 108.
A "part time class," provided for by chapter 74, is defined
by the first section of the chapter as "a vocational class in
an industrial, agricultural or household arts schools," and
the pupils attending such a class are clearly entitled to the
benefit of the reduced fare.
An "independent industrial, agricultural or household
arts school," provided for by chapter 74, is defined in the
first section as being for all the types of vocational training
defined in the section, and its pupils are clearly within the
terms of G. L., c. 161, § 108. The same considerations appl}^
to an independent agricultural school mentioned in chapter
74.
Under the heading of "Vocational Schools," section 1
of chapter 74 defines "evening class," in an industrial school,
a class giving instruction for pupils employed during the
working day, and which, to be called vocational, must
deal with and relate to the day employment. ..." Even
if the instruction which the pupil receives in the class is not,
by reason of its failure to relate to the pupil's day employ-
ment, such as to be called "vocational," nevertheless, as
the class itself is conducted in an industrial school, a school
which by the definitions of the statute is engaged in the
JAY R. BENTON, ATTORNEY-GENERAL. 349
general course of giving vocational education, the pupils
may fairly be said to be pupils of a vocational school and so
be entitled to the benefits of the statute.
A "practical art class," provided for by this chapter, is
defined as "a separate day or a separate evening class in
household and other practical arts." A "household arts
education" has already been defined in the first section of
the chapter as a form of vocational training, and if such
practical art class be held in connection with one of the
schools connected with the arts already referred to, the
pupil is entitled to the benefit of the statute. If such a
class, however, provided for by section 14 of chapter 74,
be formed and conducted independently of any of the schools
mentioned in the chapter, the attendants upon such classes
can hardly be said to be "pupils of vocational schools,"
and in such case would not be entitled to the benefits of the
statute. A single class conducted without reference to
other groups or classes having a common management is
not the equivalant of a "school."
Schools such as are mentioned in section 15 of chapter 74
would seem to fall within the classification of vocational
schools if their primary purpose be to give education to
fit pupils for profitable employment. If such be not the
primary purpose of any one of such schools, then such
school cannot be said to be a "vocational school" within the
meaning of chapter 161 and its pupils would not be entitled
to the lower fare.
These instances appear to cover the various kinds of
schools and classes which may be formed or maintained
under the provisions of chapter 74, with the exception of
those schools which are expressly referred to by name in the
statute and explicitly declared to be "vocational." As
to the status of pupils of such schools, there can be no doubt
but that they are entitled to the reduced fare.
With the exception of the two instances above noted,
the various types of pupils comprehended by the act would
350
OPINIONS OF THE ATTORNEY-GENERAL.
seem to fall fairly under the designation of pupils of vo-
cational schools, and as such to be entitled to the lower rate
of fare.
To the Joint
Committee on
Elections.
1924
February 6.
Constitutional Law — Membership in Political Com-
mittees — Police Power.
Membership in a political committee belonging to a political party is not a public
office, and may properly be regulated by the Legislature in the exercise of the
police power.
A bill providing that State committees shall consist of one committeeman and one
committeewoman from each senatorial district and a number of members at
large, would be constitutional, if enacted.
I have the honor to acknowledge receipt of your commu-
nication in behalf of the joint committee on election laws,
requesting my opinion whether or not House Bill No. 473,
if enacted into law, would be constitutional.
Section 1 of the bill, which presents the constitutional
question to which your inquiry relates, amends section 1
of G. L., c. 52, relative to political committees, by striking
out, in the fifth line, the word "member" and inserting the
words "committeeman and one committeewoman," so
that the first paragraph will read as follows : —
Each political party shall, at the primaries before each biennial state
election, elect a state committee, the members of which shall hold office
for two years from January first next following their election and until
their successors shall have organized. Said committee shall consist of
one committeeman and one committeewoman from each senatorial dis-
trict, to be elected at the state primaries by plurality vote of the members
of his party in the district, and such number of members at large as may
be fixed by the committee, to be elected at the state convention.
By section 2 of the bill, G. L., c. 53, § 34, as amended,
relative to the form of ballots to be used at primaries, is
further amended by adding a provision that names of
candidates for State committeemen and for State committee-
women shall be arranged alphabetically under separate
designations.
If membership in a political committee were a public
JAY R. BENTON, ATTORNEY-GENERAL. 351
office we should be confronted at the outset by the grave con-
stitutional question whether the provision requiring the
election of one committeeman and one committeewoman
from each senatorial district did not violate article IX of
the Bill of Rights, by which it is declared that "all the in-
habitants of this commonwealth, having such qualifications
as they shall establish by their frame of government, have
an equal right to elect officers, and to be elected, for public
employments." Since the adoption of the Nineteenth
Amendment to the United States Constitution this pro-
vision assures to both men and women, otherwise qualified,
an equal right to hold public office as well as to vote. "Now
that the word 'male' as a limitation upon the right to vote
has been eliminated from the Constitution of Massa-
chusetts, and the suffrage is thrown open to all citizens, all
express limitation upon eligibility for office founded upon
sex, created or recognized by the Constitution, disappears."
Opinion of the Justices, 240 Mass. 601, 608, 609. A require-
ment as to particular public offices, that they shall be filled
according to a sex distinction, although resulting in a division
of offices of a certain class between men and women equally,
or by any method of apportionment, would seem to be
wholly inconsistent with the rule thus enunciated; but
as to this I am not called upon to express a formal opinion.
It is, however, settled that membership in a political com-
mittee belonging to a political party is not a public office.
The duties of the position do not involve in their performance
the exercise of any portion of the sovereign power. "The
fact that the Legislature has deemed it expedient to regulate
by statute the election and conduct of political committees
does not make the office a public one. The members of
them continue to be, as before, the officers of the party
which elects them, and their duties are confined to matters
pertaining to the party to which they belong, and which
alone is interested in their proper performance." Attorney
General v. Drohan, 169 Mass. 534, 536; V Op. Atty. Gen.
614.
352 OPINIONS OF THE ATTORNEY-GENERAL.
The Constitutions both of the United States and of the
Commonwealth contain no mention of poHtical parties or
of political committees thereof. No peculiar constitutional
safeguards surround such organizations or persons connected
with them. The validity of legislation affecting them
depends upon ordinary constitutional principles. Political
committees may properly be regulated by the Legislature
in the exercise of the police power; and any such regulation
will be valid unless it trenches upon the political rights
of voters secured by the Constitution of Massachusetts,
or unless, because it is arbitrary or unreasonable, it offends
against the fundamental constitutional guaranties of due
process of law and equal protection of the laws contained in
the Fourteenth Amendment to the United States Con-
stitution and corresponding provisions of our State Con-
stitution. Cole V. Tucker, 164 Mass. 486; Jaquit v. Welles-
ley, 171 Mass. 138, 143; Commonwealth v. Rogers, 181
Mass. 184, 186, 187; Wyethv. Cambridge Board of Health,
200 Mass. 474, 478; V Op. Atty. Gen. 614. The Legislature
has a wide discretion in the enactment of laws for the pro-
motion of the general welfare. They are invalid only if
they are arbitrary or inappropriate to the end in view or
contain some classification or discrimination which is un-
reasonable. Commonwealth v. Interstate, etc., St. Ry. Co.,
187 Mass. 436; Coinmonwealth v. Strauss, 191 Mass. 545,
553 ; Wijeth v. Cambridge Board of Health, 200 Mass. 474,
478; Cominonwealth v. I Abbey, 216 Mass. 356; Commonwealth
V. Tiicomb, 229 Mass. 14; Laivton v. Steele, 152 U. S. 133,
137; Tanner v. Little, 240 U. S. 369. Every rational pre-
sumption must be made in favor of the validity of such
legislation, if enacted. Perkins v. Westwood, 226 Mass.
268; Attorney General v. Pelletier, 240 Mass. 264, 298, 299.
We come now to the specific question whether the pro-
vision that a State committee shall consist of one committee-
man and one committeewoman from each senatorial district
is unconstitutional.
The statute today provides for the election of one member
JAY R. BENTON, ATTORNEY-GENERAL. 353
from each senatorial district. The proposed law provides
for the election of a committeeman and a committeewoman
from each senatorial district. The regulation does not affect
the right to hold public office or the right to vote for public
officers. The distinction which it makes creates no political
inequality, nor does it seem to interfere with the legal rights
of any person in such a way as to deny to him the equal
protection of the laws. An analogy may be found in laws
requiring the separation of white and colored persons in
matters unconnected with the right to hold public office
or vote for public officers. Such laws, when the distinction
is a reasonable one, in view of the purpose contemplated,
have been held not to violate the Fourteenth Amendment,
because it was not intended by that amendment to prohibit
all distinctions based upon color. Plessy v. Ferguson,
163 U. S. 537, 544; Pace v. Alabama, 106 U. S. 583; Berea
College v. Kentucky, 211 U. S. 45. See also, Ciml Rights
Cases, 109 U. S. 3. The proposed act provides for an
equal proportion of men and women to be elected to the
State committee from each senatorial district. This, it
ma}" be presumed, corresponds roughly to the proportion
of men and women qualified to vote for delegates. It
cannot be said as a matter of law, in my judgment, that if
the Legislature, in its discretion, deems that it is expedient
so to regulate by statute the election of political com-
mittees, this regulation would be arbitrary and unreasonable.
My opinion, therefore, is that the bill, if enacted, would be
constitutional.
354 opinions of the attorney-general.
State Armories — Armorers and Assistant Armorers
— Appointment as Special Police.
There appears to be no provision of law authorizing the appointment of armorers
and assistant armorers in State armories as special police officers.
^nt Genemf You Fcquest my opinion "as to the method of procedure
Februity 9. for securing the appointment of armorers and assistant
armorers as special pohce officers," and I assume that you
mean to inquire as to the possibiUty of such appointment.
I am unaware of any provision in the General Laws or
amendments thereto, with certain exceptions not here
applicable, which authorizes such appointment. Special
statutes for specific municipalities have from time to time
been enacted authorizing the appointment of special police
officers under certain circumstances and for certain purposes.
Whether armorers may be appointed as special police officers
in a given community depends upon the special act applicable
to that community.
As a guide to an interpretation of some of the special
acts relating to special police officers I refer to the legislation
affecting the city of Boston. There the Police Com-
missioner may appoint special police officers only under
St. 1898, c. 282, § 2, and amendments thereof, which pro-
vides : —
Said board may, if it deems it expedient, on the application of any cor-
poration or person that said board may deem responsible, appoint special
police officers to serve without pay from said city, and the corporation
or person applying for an appointment under this section shall be liable
for the official misconduct of the officer appointed on such application,
as for the torts of any servant or agent in the employ of such corporation
or person.
The "corporation or person" referred to in the act is the
corporation or person employing the individual sought to
be appointed as a special police officer. It seems apparent
that an armorer may not be appointed a special police
officer in Boston, since the Commonwealth is neither a
JAY R. BENTON, ATTORNEY-GENERAL. 355
corporation nor a person, within the meaning of the act, and
no officer of the Commonwealth can by such appHcation
impose any Hability upon it for the armorer's misconduct.
As a further guide to a consideration of the effect of other
special acts I refer also to St. 1898, c. 282, § 3. That section
provides, in part : —
Every special police officer appointed under the pro\asions of this act
. . . shall have the power of police officers to preserve order and to en-
force the laws and ordinances of the city in and about any park, public
ground, place of amusement, place of public worship, wharf, manufactory
or other locality specified in the application. . . .
In the matter of making arrests a special police officer
is confined strictly to the powers given by the statutes
creating his position and relating thereto. Hull v. Boston
& Maine R.R., 210 Mass. 159. Section 3 does not give
a special police officer the full powers enjoyed by the regular
police force of Boston. His powers thereunder are limited
to the preservation of order and the enforcement of the laws
and ordinances of the city. They could not, except with
respect to the preservation of order, be exercised in armories,
since armories are specifically placed under the care and
control of officers of the Commonwealth and are not subject
to local regulation. I Op. Atty. Gen. 290; II Op. Atty.
Gen. 399; IV Op. Atty. Gen. 537.
I refrain from considering at this time what would be
the respective powers of a special police officer and a com-
manding officer under G. L., c. 33, § 51. Such consideration
may not be necessary under any existing law. I do not pass
on the desirability of uniting civil and military authority
in the same person, as that is beyond my province.
356
OPINIONS OF THE ATTORNEY-GENERAL.
To the Com-
niissioner of
Insurance.
1924
February 12.
Insurance — Right of Domestic Mutual Companies
TO transact Lawful Forms of Business in Addition
TO THOSE specified IN THEIR CHARTERS AUTHORITY
OF Commissioner of Insurance.
The Commissioner of Insurance does not possess a discretion as to issuing or with-
holding an express license to a domestic mutual company to transact a lawful
form of insurance business in addition to those specified in its charter and
additional to those mentioned in G. L., c. 175, § 47. If the proposed form of
insurance business is lawful, and the terms and conditions for its transaction,
laid down by the Commissioner, are complied with, the company is entitled
to such express license a-s a matter of right.
You have asked my opinion whether you have discretion
either to grant or to refuse a license to a domestic mutual
company to transact the business of insuring against loss
of use and occupancy caused by strikes and sabotage,
which is a kind of business not specified in its charter or
agreement of association and not included among the pur-
poses for which an insurance company may be incorporated ;
or whether you are Umited in your discretion to the determi-
nation of the terms and conditions under which such busi-
ness shall be carried on.
G. L., c. 175, § 47, enumerates the kinds of business for
the doing of which companies may be incorporated under
the Massachusetts insurance law. Section 54 provides : —
No domestic mutual company shall transact any other kind of busi-
ness than is specified in its charter or agreement of association, except
that it may in addition transact the kinds of business specified below by
reference to the several clauses of section forty-seven, as follows:
ig) Any form of insurance not inchided in the provisions of section
forty-seven; provided, that such form of insurance is not contrary to
law and shall be transacted only upon express license of the commissioner
and upon such terms and conditions as he may from time to time pre-
scribe.
The question is whether the right given to a domestic
mutual compan}^ by G. L., c. 175, § 54, {g), to transact, in
addition to the kinds of business specified in its charter
JAY R. BENTON, ATTORNEY-GENERAL. 357
or agreement of association, ''any form of insurance not
included in the provisions of section forty-seven," is so
limited by the proviso that it shall be transacted only
upon express license of the Commissioner as to depend
upon the exercise of the Commissioner's discretion whether
he will grant or refuse a license, or whether the Com-
missioner's power is restricted to determining whether the
proposed business is lawful and prescribing the terms and
conditions under which such business may be transacted.
In determining this question we must consider what author-
ity was intended to be conferred on the Commissioner of
Insurance by G. L., c. 175, § 54, {g).
The kinds of business which a domestic insurance com-
pany might be organized to do were prescribed by statute
in 1872, and have been defined and limited since that time.
The Legislature during this period always reserved to itself
the power to pass on the advisabihty of the kinds of insurance
that should be written, and enacted laws with appropriate
restrictions. This policy was followed until 1920, at which
time there were left but a few relatively unimportant kinds
of insurance, with the result that the Legislature enacted a
blanket clause, St. 1920, c. 327, § 2, now found in two places,
to wit, G. L., c. 175, § 51, [g], and § 54, {g). To interpret
these clauses as giving tlie Conmiissioner of Insm-ance an
absolute discretion, from which no appeal may be taken,
to determine what kinds of business insurance companies
may transact would be saying that the Commissioner has
complete authority to determine the extent of an insurance
company's corporate powers. If it had been the intention
of the Legislature to vest such an absolute discretion in the
Commissioner, and to depart from its long-established
policy, it would have said so in plain and unmistakable
language. The language of the act seems to indicate a
contrary intention. In my opinion, G. L., c. 175, § 54,
{g), confers upon domestic mutual companies the right,
subject to certain conditions, to transact any form of in-
surance not included in the provisions of section 47 which is
358 OPINIONS OF THE ATTORNEY-GENERAL.
not contrary to law, and this right may not be taken away
from them by the Commissioner even in the exercise of a
sound and reasonable discretion.
I am accordingly of the opinion that the Commissioner
of Insurance has no discretion either to grant or to refuse
a license for forms of insurance which are not contrary to
law, and that his discretion is restricted to determining
whether the proposed business is lawful and to prescribing
the terms and conditions under which such business may be
transacted.
Plant Pest Control — Nurseries — Abatement of
Nuisance.
The director of the Division of Plant Pest Control has no authority to abate a
nuisance caused by the presence of gypsy or brown tail moths in land separated
from a nursery by a public highway, but has such authority when the nuisance
is caused by the presence of other serious insect pests.
To the Com- You rcQuest my opinion whether the director of the
missioner of i ./ i
Agricuhure. Divisiou of Plaut Pest Control has any authority to act
February 14. ^^^^^^^ q^ ^^ ^ -^28, §§ 24 and 28, iu a case where land
immediately across the road from land occupied by a nursery
is badly infested with injurious insects, especially gypsy
moths. I assume that you use the word "nursery" as
synonymous with a place ''where nursery stock is grown."
G. L., c. 128, § 24, provides, in part, that "the director,
either personally or through his assistants, may inspect
any orchard, field, garden, roadside or other place where
trees, shrubs or other plants exist, whether on public or
private property, which he may know or have reason to
suspect is infested with the San Jose scale or any serious
insect pests or plant disease, when in his judgment such
pests or disease are hkely to cause loss to adjoining owners,"
and may take steps to abate the nuisance.
Section 28 of the act provides : —
Sections sixteen to twenty-seven, inclusive, twenty-nine and tliirty,
shall not apply to gypsy or brown tail nu)ths in any stage of development
JAY R. BENTON, ATTORNEY-GENERAL. 359
except upon places where nursery stock is grown and upon property
immediately adjoining the same.
The determination of your question depends upon the
meaning of the words "adjoining" and "immediately ad-
joining" as used in the act. The prime meaning of the
word "adjoining" is to He next to or to be in contact with,
excluding the idea of any intervening space. Yard v. Ocean
Beach Association, 49 N. J. Eq. 306; Century Dictionary;
Standard Dictionary. The word "adjoining" is, however,
also used in the sense of adjacent, along, fronting, near, close
by, and similar words. Mathews v. Kirnball, 70 Ark. 451 ;
Alexander v. Big Rapids, 76 Mich. 282; Akers v. United
New Jersey R.R., 43 N. J. L. 110; Northern Pacific Ry. Co. v.
Douglas County, 145 Wis. 288. Wlien the word is used in
statutes relating to particular acts or circumstances the
meaning must often be gathered from the context and the
general intention of the particular statute in which it is used,
and if property is the general subject of the enactment the
situation and nature of the property sought to be included
or excluded by the use of the word must be taken into ac-
count. Spaulding v. S77iith, 162 Mass. 543; Devoe v. Co7n-
monwealth, 3 Met. 316; St. Mary's Woolen Mfg. Co. v. Brad-
ford Co., 14 Ohio C. Ct. 522; State v. Downes, 59 N. H. 320.
The substance of G. L., c. 128, § 24, first appeared in St.
1907, c. 321, § 4, which was made applicable to trees, shrubs
or other plants "close by." The word "adjoining" appeared
for the first time in St. 1909, c. 444, and was continued in
the General Laws. The title of the 1909 act is, in part,
"to provide for the protection of trees and shrubs from in-
jurious insects and diseases." It seems clear both from the
context and the title of the 1909 act that the Legislature
did not intend to narrow the power conferred in the 1907 act,
and that it used the word "adjoining" in the sense of "close
by," as used in the 1907 statute. If the word "adjoining"
in section 24 were given its primary meaning of "being in
contact with," no effect could be given to the word "im-
360 OPINIONS OF THE ATTORNEY-GENERAL.
mediately" in section 28, yet it is plain that the Legislature
did not regard the words "immediately adjoining," in section
28, as synonymous with ''adjoining" in section 24.
Taking into consideration, therefore, the purpose sought
to be accomplished and the intent of the Legislature as
shown by the title of the act and by the use of the words
''adjoining" and "immediately adjoining" in the same
statute, I am of the opinion that the word "adjoining"
as used in section 24 means adjacent, close by or near, and
that the words "immediately adjoining" as used in section
28 mean touching at some point. I am accordingly of
the opinion that the director has authority, under G. L.,
c. 128, § 24, to take action with respect to plant disease
or insect pests, other than gypsy or brown tail moths,
when in his judgment the disease or pests are hkely to cause
loss to owners close by, even though the respective lands
do not touch at any point, and that with respect to gypsy
or brown tail moths he has no authority to act except
upon places where nursery stock is grown or upon property
immediately touching a nursery at some point.
You do not advise me as to the precise nature of the road
which lies between the nursery and the infested land, but
I assume that it is a public highway. Even though the fee
of both owners may extend to the middle of the road and
the nursery and the infested land thus legally touch one
another, I am of the opinion that this is not the sort of
contact contemplated by section 28. See Spaulding v.
Smith, 162 Mass. 543.
Your question should therefore be answered in the negative
so far as g3T)sy or brown tail moths are concerned, and in
the affirmative with respect to other injurious insects.
jay r. benton, attorney-general. 361
Forfeiture of Club Charter — Intoxicating Liquors
— "Conviction."
a charter of a club may be declared void l)y the Secretary of the Commonwealth
only after conviction of a person for exposing and keeping for sale or selling
intoxicating liquor on the club premises.
Only a final judgment is such conviction.
A plea of guilty and the placing of the case on file does not constitute such con-
viction.
A charter of a club may not be declared void upon conviction for maintaining a
common liquor nuisance.
You request my opinion whether, under the provisions se°cr^tary.
of G. L., c. 138, § 76, you have authority to declare void Februfrt' 19.
the charter of a club described in G. L., c. 180, § 2, when its
manager pleaded guilty to keeping and exposing intox-
icating liquor for sale on the premises occupied by it and
his case was placed on file, and he further pleaded guilty
to maintaining a common liquor nuisance on its premises
and was fined $100, which he paid.
G. L., c. 138, § 76, provides, in part: —
If any person is convicted of exposing and keeping for sale or selling
intoxicating liquor on the premises occupied by any club or organization
described in section two of chapter one hundred and eighty . . . the
selectmen of the town, or the aldermen of the city, in which such club or
organization is situated, except Boston, and in Boston, the licensing
board, shall immediately notify the state secretary, and he shall, upon
receipt of such notice, declare the charter of said club void, . . .
The term "conviction" has been used in two different
senses in our statutes. In one use it signifies a plea of guilty
or a finding by the jury that the defendant is guilty. In
another use it signifies a final judgment and sentence of
the court upon a verdict or confession of guilt. Attorney
General v. Pelletier, 240 Mass. 264, 310; Munkley v. Hoyt,
179 Mass. 108, 109; Commonwealth v. Kiley, 150 Mass.
325, 326; Commonwealth v. Lockwood, 109 Mass. 323; Com-
monwealth V. Gorham, 99 Mass. 420, 422.
Where the statute provided that the conviction of a person
licensed to sell intoxicating liquors shall of itself make the
362 OPINIONS OF THE ATTORNEY-GENERAL.
license void, the court, in holding that a final judgment
was necessary, said, in Commonwealth v. Kiley, 150 Mass.
325, 326: —
Under this provision, the effect of a conviction of the kind named is
to deprive the defendant of a valuable right, without an opportunity for
further trial or investigation. We are of opinion that nothing less than
a final judgment, conclusively establishing guilt, will satisfy the meaning
of the word "conviction" as here used.
Two of my predecessors have held that the term "con-
viction," in statutes providing that licenses shall be void
upon conviction, meant a final judgment. IV Op. Atty.
Gen. 157; V Op. Atty. Gen. 401.
I am of the opinion that the instant case is governed by
the rule laid down in Commonwealth v. Kiley, supra, and
expressed in the opinions referred to, and that the charter
of a corporation may be declared void under the provisions
of G. L., c. 138, § 76, only after final judgment. The plea
of guilty to the charge of keeping and exposing intoxicating
liquors for sale and the placing of the case on file do not
constitute a final judgment, and are not, in my opinion, a
conviction within the meaning of section 76.
The corporation's manager pleaded guilty to maintaining
a common liquor nuisance and paid a fine upon that plea.
This constituted a final judgment, but is not one of the
offences enumerated in section 76 as a basis for declaring
the charter of the club void. A person may be guilty of
that offence without exposing and keeping for sale or selhng
intoxicating liquor. See G. L., c. 138, § 82.
I therefore advise you that you have no authority under
G. L., c. 138, § 76, to declare the charter of the club void.
February 20.
jay r. benton, attorney-general. 363
Boston Elevated Railway Company — Public Control
— Dividends "earned and paid."
Payments by the Commonwealth to the Boston Elevated Railway Company under
Spec. St. 1918, c. 159, § 11, are to be treated as earnings in determining whether
said railway company has "earned and paid" dividends within the meaning
of G. L., c. 168, § 54, cl. 4th.
You ask to be advised whether or not the Boston Elevated Department of
Raihvay Company, in receiving the amounts due to it PubUc^utihties.
under the provisions of Spec. St. 1918, c. 159, and in paying
therefrom and from its other receipts dividends to its stock-
holders, as provided by that act, has "earned and paid"
such dividends, within the meaning of that phrase in G. L.,
c. 168, § 54, cl. 4th.
The first two paragraphs of G. L., c. 168, § 54, cl. 4th,
read as follows : —
Section 54. Deposits and the income derived tlierefroni shall be in-
vested only as follows;
Fourth. In the bonds of any street railway company incorporated in
this commonwealth, the railway of which is located wholly or in part
therein, and which has earned and paid in dividends in cash an amount
equal to at least five per cent upon all its outstanding capital stock in
each of the five years last preceding the certification hereinafter provided
for by the department of public utilities or its predecessors except the
six months' period beginning July first and ending December thirty-first,
nineteen hundred and sixteen. No such investment shall be made unless
said company appears from returns made by it to the said department to
have properly paid said dividends without impairment of assets or capital
stock, and said department shall annually on or before June fifteenth
certify and transmit to the commissioner a list of such street railway
companies.
Di\'idends paid by way of rental to stockholders of a leased street
railway company shall be deemed to have been earned and paid by said
company within the meaning of this clause, provided that said company
shall have annually earned, and properly paid in dividends in cash, with-
out impairment of assets or capital stock, an amount equal to at least
five per cent upon all its outstanding capital stock in each of the five
fiscal years preceding the date of the lease thereof.
364 OPINIONS OF THE ATTORNEY-GENERAL.
These two paragraphs of G. L., c. 168, § 54, cl. 4th, re-
enacted, without alteration pertinent to the present inquiry,
the first and second paragraphs of St. 1908, c. 59, cl. 5th.
These, in turn, were based upon St. 1902, c. 483, §§1 and 2,
which read as follows : —
Section 1. In addition to the investments authorized by section
twenty-six of chapter one hundred and thirteen of the Revised Laws,
savings banks and institutions for savings may invest their deposits and
the income derived therefrom in the bonds, approved by the board of
commissioners of savings banks, as hereinafter provided for, of any street
railwaj^ company incorporated in this Commonwealth, the railway of
which is situated wholly or partly therein, and which has earned and
paid annually for the five years last preceding the certification hereinafter
provided for, of the board of railroad commissioners, dividends of not
less than five per cent per annum upon all of its outstanding capital
stock. In any case where two or more companies have been consoli-
dated by purchase or otherwise during the five years prior to the certifi-
cation aforesaid the payment severalh'^ from the earnings of each year of
dividends equivalent in the aggregate to a dividend of five per cent upon
the aggregate capital stocks of the several companies during the years
preceding such consolidation, shall be sufficient for the purpose. of this
act. Dividends paid to the stockholders of the West End Street Railway
Company by way of rental shall be deemed to have been earned and paid
by said West End Street Railway Company within the meaning of this
section.
Section 2. The board of railroad connnissioners shall on or before
the fifteenth day of January of each year transmit to the board of com-
missioners of savings banks a list of all street railway companies which
appear from the returns made by said companies to have properly paid,
without impairment of assets or capital stock, the dividends required by
the preceding section.
Prior to 1902, bonds of street railway companies were not
legal investments for saving banks.
The change in the phraseology of the original act, St.
1902, c. 483, §§ 1 and 2, which was made in 1908, followed
the recommendation of a legislative committee appointed
in 1907 and charged with the duty of suggesting changes in
the existing savings bank law. On page 27 of the report
of this committee (House Document No. 1280) there
appears the following paragraph : —
JAY R. BENTON, ATTORNEY-GENERAL. 365
Street Railway Bonds.
The committee have recommended no change in the paragraph relating
to investments in street railway bonds, but in conformity with the plan
followed under the paragraph relating to railroad bonds, they have
eliminated the name of the West End Street Railway from the present
law, and have provided in general terms for the situation which required
its mention.
Such expressions of legislative intent may be considered in
construing the act to which they relate. Binns v. United
States, 194 U. S. 486, 495; Holy Trinity Church v. United
States, 143 U. S. 457, 464.
The precise legal effect upon the position of the Boston
Elevated Railway Company of the so-called ''control act"
of 1908, Spec. St. 1918, c. 159, has not as yet been definitely
determined. The important provisions of that act in
regard to the payment of dividends by the Boston Elevated
Railway Company are as follows : —
Section 6. The trustees shall from time to time, in the manner here-
inafter provided, fix such rates of fare as will reasonably insure sufficient
income to meet the cost of the service, which shall include operating ex-
penses, taxes, rentals, interest on all indebtedness, such allowance as they
may deem necessary or advisable, for depreciation of property and for
obsolescence and losses in respect to property sold, destroyed, or aban-
doned, all other expenditures and charges which under the laws of the
commonwealth now or hereafter in effect may be properly chargeable
against income or surplus, fixed dividends on all preferred stock of the
company from time to time outstanding, and dividends on the common
stock of the company from time to time outstanding at the rate of five
per cent per annum on the par value thereof during the first two years,
five and one half per cent per annum on the par value thereof during the
next two years and six per cent per annum on the par value thereof during
the balance of the period of public operation. Dividends upon the com-
mon shares shall be payable quarterly, but no dividends shall be paid
upon such common shares in excess of the rates herein specified. The
first payment shall be made at the expiration of six months from the com-
mencement of public operation, and the total of the first three quarterly
dividend pajmients shall be five per cent on the par value of the common
stock.
366 OPINIONS OF THE ATTORNEY-GENERAL.
Section 9. Whenever the income of the company is insufficient to
meet the cost of the service as herein defined, the reserve fund shall be
used as far as necessary to make up such deficiency, . . .
Section 11. If, as of the last day of June in the year nineteen hundred
and nineteen, or the last day of any December or June thereafter, the
amount remaining in the reserve fund shall be insufficient to meet the
deficiency mentioned in section nine, it shall be the duty of the trustees
to notify the treasurer and receiver general of the commonwealth of the
amount of such deficiency, less the amount, if any, in the reserve fund
applicable thereto, and the commonwealth shall thereupon pay over to
the company the amount so ascertained. Pending such payment it shall
be the duty of the trustees to borrow such amount of money as may be
necessary to enable them to make all payments, including dividend pay-
ments, as they become due. . . .
Spec. St. 1918, c. 159, amounted either to a lease of the
railway property to the Commonwealth or to a contract
for public operation upon stipulated terms. Boston v.
Treasurer and Receiver General, 237 Mass. 403, 416. Prob-
ably the former view is the more satisfactory. Boston v.
Jackson, 260 U. S. 309, 314. See, also, Opinion of the
Justices, 231 Mass. 603; V Op. Atty. Gen. 320. In either
case, however, in my opinion, the phrase "earned and paid,"
in the first paragraph of G. L., c. 168, § 54, cl. 4th, quoted
above, is broad enough to include both receipts from oper-
ation and payments, if any, by the Commonwealth under
section 11 of the control act.
The word ''earned" is not to be restricted to the dimes
and nickels actually collected from passengers. Unquestion-
ably it would include money received under advertising
contracts and the like, or under leases of superfluous land
or rolling stock. If payments by the Commonwealth
under section 11 be regarded as receipts under a contract
to make good possible deficiencies, they would seem, there-
fore, to be included within the meaning of the word "earned."
Nor does there seem any sound reason for so restricting
JAY R. BENTON, ATTORNEY-GENERAL. 367
that meaning as to exclude them, even though looked upon
as rental from a lease of the enth'e system.
Two considerations fortify me in this conclusion. R. L.,
c. 113, § 26, to which St. 1902, c. 483, was in fact, though
not in form, an amendment, permitted savings banks to
invest in the bonds of railroad corporations which complied
with certain requirements. The first paragraph of the third
clause of that section was as follows : —
Third, a. In the first mortgage bonds of a railroad company incor-
porated in any of the New England states and whose road is located
wholly or in part in the same, whether such corporation is in possession
of and is operating its own road or has leased it to another railroad cor-
poration, and has earned and paid regular dividends of not less than
three per cent per annum on all its issues of capital stock for the two years
last preceding such investment.
Originally {i.e., down to P. S., c. 116, § 20, cl. 3rd), this
paragraph read : —
In the first mortgage bonds of any railroad company . . . which is in
possession of and operating its own road, and has earned and paid regular
dividends . . .
Prior to 1902, however, it had been amended by St. 1889,
c. 305, so as to include railroad corporations which ''earned
and paid regular dividends . . .," whether such corporation
operated its own road or had leased it to another railroad
corporation. The fact that, at the time of the adoption
of St. 1902, c. 483, the law governing the legality of rail-
road bonds as savings bank investments had evolved to
this point, indicates to my mind that the Legislature, in
omitting in the first paragraph of that act any reference to
the distinction between leased and operated street railways,
intended the test of legality thereby established to apply
equally to both.
My opinion is further fortified by the last sentence of St.
1902, c. 483, § 1 (now the second paragraph of G. L., c. 168,
4,§ 5 cl. 4th), providing that "dividends paid to the stock-
36S OPINIONS OF THE ATTORNEY-GENERAL.
holders of the West End Street Railway Company by way
of rental shall be deemed to have been earned and paid by
said West End Street Railway Company within the meaning
of this section." The existence of this final sentence, which
was added to the original act as an eleventh hour amend-
ment, is explained by the fact that, under the provisions
of the lease of the West End Street Railway to the Boston
Elevated Railway Company, the Boston Elevated, on
stipulated dates in each year, paid directly to the stock-
holders of the West End Street Railway Company certain
stipulated sums per share held. See West End St. Ry.
Co. V. M alley, 246 Fed. 625, 626. Under such an arrange-
ment it might well have been open to question whether the
West End Street Railway Company earned and paid any
dividends whatsoever. The amendment was undoubtedly
introduced to take care of that situation; and it is to that
situation that we must look in interpreting the phrase
"dividends paid by way of rental" in St. 1902, c. 483, and
also, in view of the intention expressed in 1908 to effect
no change in existing law, in interpreting that phrase in
the second paragraph of G. L., c. 168, § 54, cl. 4th.
The fact, therefore, that the Legislature, in 1902, ex-
pressly included a particular leased line among those street
railway companies to which S. 1902, c. 483, was applicable,
not as an exception to a general rule excluding leased lines,
but in order that that particular leased line should not be
debarred from the privilege accorded to leased hues in
general, because of the short cut method adopted by it
for distributing to its stockholders the profits of its lease,
seems to me a further indication of the legislative intent that
the test of legality established should apply equally to
leased and to operated lines. In fact, had St. 1902, c. 483,
included operated lines only and excluded in general all
leased lines, a provision extending to a particular leased line
the privilege denied to all others might well have been
open to serious constitutional objections.
It is true that the control act contemplates that the
JAY R. BENTON, ATTORNEY-GENERAL. 369
Boston Elevated Railway Company shall ultimately repay
any money paid to it by the Commonwealth. It is to do
so, however, only when, and if, its earnings from operation,
in addition to covering all operating expenses and dividends,
have built up a new surplus exceeding by thirty per cent
or more the one million dollar reserve fund originally
estabhshed. Spec. St. 1918, c. 159, § 11. This provision,
therefore, is independent of the Commonwealth's obligation
to meet possible deficiencies. It does not in any sense
render a payment by the Commonwealth under section
11a mere loan. Upon such a payment the Boston Elevated
Railway Company does not become indebted to the Com-
monwealth for the amount paid over to it. True, at some
future date the Boston Elevated Railway Company may be
operating so successfully that it will be required by section
11 to reimburse the Commonwealth. But it is equally
true that this desirable condition may never come to pass.
Whether it does or not will depend upon the working of the
law of demand and supply under new conditions of increased
rates of fare. Despite the provision for possible future
reimbursments, therefore, whether the consolidation act
be looked upon as lease or a contract, payments to the
Boston Elevated Railway Company under section 11
properly may be regarded as money "earned" by it.
Accordingly, in my opinion, if the Boston Elevated Rail-
way Company, pursuant to Spec. St. 1918, c. 159, has paid
dividends of at least five per cent on all its outstanding
capital stock in the years 1919 to 1923, inclusive, and if in
each of these years its receipts, including therein both earn-
ings by operation and payments, if any, by the Common-
wealth under section 11, have amounted to at least five
per cent of the total outstanding capital stock, it has "earned
and paid" such dividends during that period, within the
meaning of G. L., c. 168, § 54, cl. 4th.
370
OPINIONS OF THE ATTORNEY-GENERAL.
To the Com-
missioner of
Public Health.
1924
February 21.
Vaccination — Unvaccinated Child — Admission to
Public Schools — Proof of Vaccination.
Vaccination, in its statutory meaning, ia the operation known as vaccination
properly performed. A successful operation is not required to constitute
vaccination.
An unvaccinated child, within the purview of the statute, is a child upon whom
the operation known as vaccination has not been properly performed.
Visible evidence that vaccination has been successfully performed is not a neces-
sary requirement for the admission of a child to a public school.
Proof that a child has been properly vaccinated may be required before admission
to a public school.
Mere verbal changes in the revision of a statute do not alter its meaning.
You have requested my opinion on the following questions :
(!) What constitutes vaccination within the meaning of G. L., c. 76,
§ 15?
(2) Is it necessary, legally, to have visible evidence that vaccination
has been successfully performed?
(3) Inasmuch as the "Goodall" metliod may or may not produce an
immunity, would a certificate from a physician stating that he had vac-
cinated a child of school age by this method, admit the child as a vacci-
nated pupil to school?
G. L., c. 76, § 15, provides, in part: —
An unvaccinated child shall not be admitted to a public school except
upon presentation of a certificate like the physician's certificate required
by section one hundred and eighty-three of chapter one hundred and
eleven. . . .
G. L., c. Ill, § 183, is, in part, as follows: —
. . . any child presenting a certificate, signed by a registered physician
designated by the parent or guardian, that the physician has at the time
of giving the certificate personally examined the child and that he is of
the opinion that the physical condition of the child is such that his health
will be endangered by vaccination, shall not, while such condition con-
tinues, be subject to the two preceding sections.
Section 181 provides, in part: —
Boards of health, if in their opinion it is necessary for public health or
safety, shall require and enforce the vaccination and revaccination of
JAY R. BENTON, ATTORNEY-GENERAL. 371
all the inhabitants of their towns, and sluill provide them with tlie means
of free vaccination. ...
Section 182 provides for the vaccination of inmates of
certain establishments and institutions.
The requirement that children must be vaccinated before
they may be admitted to the public schools first appears
in St. 1855, c. 414, § 2, which provides that "the school
committee of the several towns and cities, shall not allow
any child to be admitted to or connected with the public
schools who has not been duly vaccinated."
Section 4 of that chapter provided for the enforcement
of re-vaccination in cities and towns when the public health
required it, with the following proviso : —
. . . provided, that none shall Ije required to be re-vaccinated who shall
prove, to the satisfaction of said selectmen, or mayor and aldermen, that
they have been successfully vaccinated, or re-vaccinated, within five
years next preceding; . . .
Section 5 of the act provided that inmates of certain
establishments and institutions should be "properly"
vaccinated.
The requirement making vaccination a condition pre-
cedent to the right of a child to attend the public schools
was modified by St. 1898, c. 496, § 11, which added the words
"except upon presentation of a certificate signed by a regular
practicing physician that such child is an unfit subject for
vaccination." This excepting clause was changed from
time to time thereafter until it reached its present form.
The primary definition of the word "vaccination" is "in-
oculation with vaccine, or the virus of cowpox, as a pre-
ventive of smallpox." Century Dictionary; New Inter-
national Encyclopedia.
"Vaccination" is also defined as "a method of protective
inoculation against smallpox, consisting in the intentional
transference to thejhuman being of the eruptive disease
of cattle, called cowpox." Encyclopedia Britannica.
372 OPINIONS OF THE ATTORNEY-GENERAL.
It is further defined as "a process of transmitting by in-
oculation a specific disease, known as vaccinia, cowpox or
modified smallpox, from one susceptible reagent to another."
Encyclopedia Americana.
The word '^un vaccinated" is defined as "not vaccinated;
specifically, having never been successfully vaccinated."
Century Dictionary.
"Inoculation" is defined as "the introduction of a specific
animal poison into the tissue by puncture or other contact
with a wounded surface." Century Dictionary.
In Commonwealth v. Jacohson, 183 Mass. 242, the defend-
ant made an offer of proof, of which, as appears from the
record, the ninth proposition was as follows : —
Ninth. That vaccination consists in inoculating the human system
with a specific disease, known as cowpox, by means of the insertion into
the human body — by incision and absorption — of various kinds of
virus, commonly known as matter or pus, generally obtained from cow-
pox sores upon the bodies of calves (sometimes other animals) which
have been infected with this disease for the purpose of generating this
viinis, pus or matter.
The court said, concerning this proposition, at page 246 : —
The ninth of the propositions which he offered to prove, as to what
vaccination consists of, is nothing more than a fact of common knowl-
edge, upon which the statute is founded, and proof of it was unnecessary
and immaterial.
The decision was affirmed and the above remark was
quoted with approval in Jacohsoii v. Massachusetts, 197
U. S. 11, 23.
In Lee v. Marsh, 230 Penn. 351, the following definition
was applied in construing a statute of Pennsylvania : —
The ordinary and usual meaning of "vaccination," and the sense in
which it must be supposed to have been used by the legislature, is inocu-
lation with the virus of cowpox for the purpose of communicating that
disease as a prophylactic against smallpox. It indicates an operation,
and not a result. If a person should take cowpox by milking cows, or
JAY R. BENTON, ATTORNEY-GENERAL. 373
otherwise, or from other contact with the disease he could not be said to
have been vaccinated. The operation is comparatively old, having been
in use for over 100 j^ears, and during that time has always consisted of
inoculating the body, that is, grafting upon it the disease, by inserting
the virus under the skin, and the test of its success has always been con-
sidered to be the appearance of the symptoms of the disease, including
those which manifest themselves on the skin.
In the medical sense, an "un vaccinated" child is generally
understood to mean either a child upon whom the operation
known as vaccination has never been performed or upon
whom it has been performed unsuccessfully.
It thus appears that the word 'Vaccinated," as generally
used, may apply either to the operation itself, whether
successful or not, or to the successful operation.
The meaning of the words "vaccinated" or unvacci-
nated," as used in the statute, must be determined from
the context, the general intention of the Legislature and
the purpose to be accomplished. Commonwealth v. Nicker-
son, 236 Mass. 281, 290; Hammond v. Hyde Park, 195 Mass.
29, 30; Chapin v. Lowell, 194 Mass. 486, 488; Toupin v.
Peahody, 162 Mass. 473, 476; Sweetser v. Emerson, 236
Fed. 161, 162.
The original act, St. 1855, c. 414, contains the words
"vaccinated," "duly vaccinated," "successfully vaccinated,"
"properly vaccinated," and "re-vaccinated."
The word "duly" means "in a fit manner; properly;
in accordance with what is required or suitable." Words
and Phrases, vol. 3, p. 2259.
The terms of the act show that the Legislature under-
stood and appreciated the double meaning of the word
"vaccinated," and that vaccination did not furnish im-
munity for life but that re-vaccination might be required
at times for the protection of public health. In some
instances, I am informed, children, because of natural in-
susceptibility, can never be successfully vaccinated. An
interpretation of the word "vaccinated" as "successfully
374 OPINIONS OF THE ATTORNEY-GENERAL.
vaccinated" would prevent such children from ever at-
tending a public school.
Where the vaccine used is fresh and the operation is
properly performed, vaccination, I am informed, will be
unsuccessful in a comparatively small number of cases.
Taking all of the foregoing factors into consideration, I
am of the opinion that the Legislature, by the use of the
words "duly vaccinated," meant the operation known as
vaccination properly performed, and did not mean the
operation successfully performed.
The words "duly vaccinated" appeared in the statutes
from 1855 to the Revised Laws of 1902, when in the codifica-
tion the word "duly" was omitted. It is also omitted in
the General Laws. The requirement of proper vaccination
as a condition precedent to admission to a public school
nevertheless continues. The general rule is well settled
that mere verbal changes in the revision of a statute do
not alter its meaning, and the Legislature will not be pre-
sumed to have intended to alter the law unless their language
plainly requires that construction. Commonwealth v. N. Y.
C. & H. R. R.R. Co., 206 Mass. 417, 419; Great Barrington
V. Gibbons, 199 Mass. 527, 529; Tilton v. Tilton, 196 Mass.
562, 564; Savage v. Shaw, 195 Mass. 571; Electric Welding
Co. V. Prince, 195 Mass. 242, 259.
Neither the language of the Revised Laws nor of the
General Laws requires a construction that the Legislature
intended to alter the law.
I am therefore of the opinion that an "unvaccinated
child," within the meaning of G. L., c. 76, § 15, is a child
upon whom the operation known as vaccination has not been
properly performed.
My answer to your second question is in the negative.
You state that recently a new method of vaccination
has been introduced, known as the "Goodall" method,
which consists of a hypodermic injection of the virus,
leaving no evidence that the operation has been performed.
Whether or not such method is vaccination properly per-
JAY R. BENTON, ATTORNEY-GENERAL. 375
formed is a question of fact which is not within my province
to determine. The question whether in a given case a child
has been properly vaccinated is a question of fact, as to
which the proper authorities may require proof.
G. L., c. 76, § 15, states a condition precedent, the non-
fulfilment of which is an absolute bar to the right of a child
to attend the public schools. But this is not the only
statutory provision under which school children may be
required to be vaccinated for the protection of the public
health. Under the provisions of G. L., c. Ill, §§ 181 and
183, boards of health may require and enforce the vacci-
nation and re-vaccination of all the inhabitants of their
towns, with the proviso, already referred to, exempting the
child presenting a physician's certificate. In addition
to this provision there is also the provision in G. L., c. 76,
§ 5, as follows : —
Every child shall have a right to attend the public schools of the town
where he actually resides, subject to the following section, and to such
reasonable regulations as to numbers and qualifications of pupils to be
admitted to the respective schools and as to other school matters as the
school committee shall from time to time prescribe. . . .
It has been held that by virtue of this provision school
committees may adopt regulations imposing further require-
ments with respect to vaccination. Hammond v. Hyde
Park, 195 Mass. 29; Spofford v. Carleton, 238 Mass. 528.
With respect to the character of such regulations the only
requirement imposed by the statute is that they shall be
"reasonable." Whether regulations prescribing methods
of vaccination or the submission of proof of successful
vaccination would be reasonable I do not undertake to
determine.
376 opinions of the attorney-general.
Elections — Presidential Primaries — Candidates for
Delegates to National Party Conventions —
Preferences.
A nomination paper of a candidate for delegate to a national party convention at
a presidential primary sufficiently states the preference of the candidate in
accordance with G. L., c. 53, § 68, if it bears the words "pledged to . . ."
se° ratify. You rcquGst my opinion on a question arising out of the
February 25. performaiice of your official duties in preparing the official
ballot for use in the coming presidential primaries, at which
delegates to the national conventions of political parties
are to be elected.
G. L., c. 53, § 68, provides, in part, that —
The ballot shall also contain a statement of the preference, if any, of
each candidate for delegate as to a candidate for nomination for presi-
dent, provided that such statement appears in his nomination papers; . . .
You state that nomination papers are now in circulation
bearing the words "pledged to . . ."
You ask to be advised as to whether or not the use of the
statement in this form is permissible.
The statement is unambiguous, and the words clearly
and unmistakably indicate the candidate's preference and
choice as to a candidate for nomination for president.
In my judgment, the use of such a statement is, as a matter
of law, permissible, and a candidate is entitled to have
placed upon the ballot such a statement of his preference,
upon his complying with the other provisions of said section
68. It is not necessary that the word "preference" shall be
used upon a nomination paper if a "statement" unmistaka-
bly connoting the same meaning is used.
jay r. benton, attorney-general. 377
Constitutional Law — Rearrangement of the Con-
stitution — Adoption of Rearranged Constitution.
Under the Constitution an amendment may be made by initiative petition, by
legislative substitute and by legislative amendment.
The Legislature has no power to initiate a new or revised constitution.
The proposed rearrangement of the Constitution is not an amendment but a re-
\-ision, and cannot, under the Constitution, be submitted to the voters by the
Legislature.
You have submitted to me Senate Resolve No. 54 of 1924, coramittee"on
,, 11 .. /icii> j_- Constitutional
and have asked my opmion upon the loUowmg questions Law.
of law in relation thereto : — March 4.
1. Is it constitutionally competent for the General Court to act upon
the "Resolve to provide that the Rearrangement of the Constitution
adopted by the voters in November, nineteen hundred and nineteen,
amended to conform to existing law, shall be the Constitution of the
Commonwealth" (Senate No. 54), under the provisions of article XLVIII
of the amendments to the Constitution or under any other provision of
the Constitution?
2. Would the adoption of a revised or rearranged constitution l)e an
amendment of the Constitution of the Commonwealth, within the mean-
ing of article XIjVIII of the amendments to said Constitution?
3. May a revised or rearranged constitution be constitutionally adopted
in any other manner than through the instrumentality of a constitutional
convention?
It is the official duty of the Attorney-General to advise a
committee of the Legislature only with respect to such bills
as may be actually pending before it. Ill Op. Atty. Gen.
Ill; VI Op. Atty. Gen. 147. Cf. G. L., c.l2, § 9. The
justices of the Supreme Judicial Court, in rendering opinions
under Mass. Const., pt. 2d, c. Ill, art. II, follow a similar
rule. Opinions of the Justices, 122 Mass. 600; 226 Mass.
607, 612. Your first question relates directly to a measure
pending before you, and hence requires full consideration.
Your second and third questions are general in form, but
you state that they are asked in connection with the pending
resolve. For that reason, I shall treat them as incidental
to the main inquiry in your first question.
Furthermore, I assume that your questions refer solely
378 OPINIONS OF THE ATTORNEY-GENERAL.
to the authority of the General Court under the existing Con-
stitution and to the operation and effect of that instrument.
In response to an inquiry concerning possible methods of
amending the Constitution, the justices of the Supreme
Judicial Court, in an opinion rendered in 1833 (Opinion of
the Justices, 6 Cush. 573, 574), said: —
The court do not understand, that it was the intention of the house
of representatives, to request their opinion upon the natural right of the
people in cases of great emergency, or upon the obvious failure of their
existing constitution to accomplish the objects for which it was designed,
to provide for the amendment or alteration of their fundamental laws;
nor what would be the effect of any change and alteration of their con-
stitution, made under such circumstances and sanctioned by the assent
of the people. Such a view of the subject would involve the general
question of natural rights, and the inherent and fundamental principles
upon which civil society is founded, rather than any question upon the
nature, construction, or operation of the existing constitution of the com-
monwealth, and the laws made under it. We presume, therefore, that
the opinion requested applies to the existing constitution and laws of the
commonwealth, and the rights and powers derived from and under them.
Accordingly, I discard from consideration all question
of the validity of legislative action under altered con-
stitutional conditions, or of the possible efficacy of un-
authorized legislative action by virtue of hypothetical
future happenings.
I also assume, from the form of your questions and the
caption of the resolve, which purports to provide that the
rearrangement "shall be the Constitution of the Common-
wealth," that the very essence of the proposed measure is
the substitution of a new for an existing constitution, and
that the term "revised or rearranged constitution," as you
use it, means such a substituted constitution.
What are the provisions in the existing Constitution for
its amendment, revision or rearrangement?
In the Constitution originally adopted there are two
references to possible changes. The first is in article VII
of the Bill of Rights, providing that —
JAY R. BENTON, ATTORNEY-GENERAL. 379
Therefore the people alone have an incontestable, unalienable, and in-
defeasible right to institute government; and to reform, alter, or totally
change the same, when their protection, safety, prosperity, and happiness
require it.
The second is in chapter VI, article X, of the Frame of
Government, which provides that —
In order the more effectually to adhere to the principles of the consti-
tution, and to correct those violations which by any means may be made
therein, as well as to form such alterations as from experience shall be
found necessary, —
the General Court in 1795 shall take steps for the calling
of a constitutional convention to consider revising or
amending the Constitution.
No convention was called in 1795, as directed by that
provision, but in 1820 a convention was held which sub-
mitted to the people a number of amendments, of which
nine were adopted, becoming the first nine articles of
amendment to the Constitution. The ninth amendment
provided for amendments to the Constitution, in the
following terms : —
If, at an> time hereafter, any specific and particular amendment or
amendments to the constitution be proposed in the general court, and
agreed to by a majority of the senators and two- thirds of the members
of the house of representatives present and voting thereon, such proposed
amendment or amendments shall be entered on the journals of the two
houses, with the yeas and nays taken thereon, and referred to the general
court then next to be chosen, and shall be published; and if, in the general
court next chosen as aforesaid, such proposed amendment or amendments
shall be agreed to by a majority of the senators and two-thirds of the
members of the house of representatives present and voting thereon, then
it shall be the duty of the general court to submit such proposed amend-
ment or amendments to the people; and if they shall be approved and
ratified by a majority of the qualified voters voting thereon, at meetings
legally warned and holden for that purpose, they shall become part of
the constitution of this commonwealth.
Articles X to XLIV, inclusive, of the amendments were
adopted under the provisions for amendment made by
article IX.
380 OPINIONS OF THE ATTORNEY-GENERAL.
Another constitutional convention was held in 1853.
This convention submitted to the people a revised con-
stitution, which was rejected by them.
Articles XLV to LXVI, inclusive, of the amendments
were submitted to the people by the Constitutional Con-
vention of 1917, and were adopted at subsequent elections
in 1917 and 1918. The forty-eighth amendment repealed
the ninth amendment, substituting therefor provisions for
amendment by initiative petition as well as by proposals
introduced in the Legislature. The sixtj-'-seventh and
last amendment was submitted to the people under the
provisions for amendment contained in the forty-eighth
amendment, and was approved in 1922.
The forty-eighth amendment is known as the Initiative
and Referendum Amendment. It begins with the following
declaration of principle : —
Legislative power shall continue to be vested in the general court;
but the people reserve to themselves the popular initiative, which is the
power of a specified number of voters to submit constitutional amend-
ments and laws to the people for approval or rejection; and the popular
referendum, which is the power of a specified number of voters to submit
laws, enacted by the general court, to the people for their ratification or
rejection.
Then follow provisions which are grouped under three
general headings: ''The Initiative," ''The Referendum"
and "General Provisions." The provisions relating to
constitutional amendments are contained under the heading
"The Initiative."
Subdivision II of that heading states the requirements
with respect to the contents and mode of originating initi-
ative petitions and their transmission to the General
Court, providing that certain excluded matters specified
in section 2 shall not be proposed by such a petition. Sub-
division III, section 2, provides for the submission to the
people of a legislative substitute for any measure introduced
by initiative petition. The measures proposed by initiative
petitions may be either constitutional amendments or laws.
JAY R. BENTON, ATTORNEY-GENERAL. 381
Subdivision IV is entitled "Legislative Action on Proposed
Constitutional Amendments." The provisions of that
subdivision are as follows : —
Section 1 . Definition . — A proposal for ameudmeut to the constitu-
tion introduced into the general court by initiative petition shall be desig-
nated an initiative amendment, and an amendment introduced by a
member of either house shall be designated a legislative substitute or a
legislative amendment.
Section 2. Joint Session. — If a proposal for a specific amendment of
the constitution is introduced into the general court by initiative petition
signed by not less than twentj^-five thousand qualified voters, or if in
case of a proposal for amendment introduced into the general court by
a member of either house, consideration thereof in joint session is called
for by vote of either house, such proposal shall, not later than the second
Wednesday in June, be laid before a joint session of the two houses, at
which the president of the senate shall preside; and if the two houses
fail to agree upon a time for holding any joint session hereby required,
or fail to continue the same from time to time until final action has been
taken upon all amendments pending, the governor shall call such joint
session or continuance thereof.
Section 3. Amendment of Proposed Ameyidments. — A proposal for
an amendment to the constitution introduced bj^ initiative petition shall
be voted upon in the form in which it was introduced, unless such amend-
ment is amended by vote of three-fourths of the members voting thereon,
in joint session, which vote shall be taken by call of the yeas and nays if
called for by any member.
Section 4. Legislative Action. — Final legislative action in the joint
session upon any amendment shall be taken only by call of the yeas and
nays, which shall be entered upon the journals of the two houses; and
an unfavorable vote at any stage preceding final action shall be verified
by call of the yeas and nays, to be entered in like manner. At such joint
.session a legislative amendment receiving the affirmative votes of a ma-
jority of all the members elected, or an initiative amendment receiving
the affirmative votes of not less than one-fourth of all the members elected,
shall be referred to the next general court.
Section 5. Submission to the People. — If in the next general court a
legislative amendment shall again be agreed to in joint session by a
majority of all the members elected, or if an initiative amendment or a
legislative substitute shall again receive the affirmative votes of at least
one-fourth of all the members elected, such fact shall be certified by the
clerk of such joint session to the secretary of the commonwealth, who shall
submit the amendment to the people at the next state election. Such
382 OPINIONS OF THE ATTORNEY-GENERAL.
amendment shall become part of the constitution if approved, in the case
of a legislative amendment, by a majority of the voters voting thereon,
or if approved, in the case of an initiative amendment or a legislative
substitute, by voters equal in number to at least thirty per cent of the
total number of ballots cast at such state election and also by a majority
of the voters voting on such amendment.
By subdivision VIII under the heading "General Pro-
visions" article IX of the amendments to the Constitution
is annulled.
By the terms of the provisions quoted above it will be
seen that a constitutional amendment may be made in
one of three ways, — (1) by initiative petition; (2) by
legislative substitute; and (3) by legislative amendment.
When the requirements governing the methods of proposal
have been complied with, and when the amendment has
been approved by the people in accordance with the pro-
visions of section 5, "such amendment shall become part
of the constitution."
Aside from the provision in article VII of the Bill of Rights,
declaring the right of the people to reform, alter or totally
change their government, the only provisions contained
in the existing Constitution for making changes therein
are in the forty-eighth amendment. This amendment
speals only of amendments to the Constitution. If, then,
a "revision" or a "rearrangement" of the Constitution means
something different from an amendment, there is no pro-
vision in the forty-eighth amendment for such a change.
The meaning of the words "rearrangement" and "revision"
received careful consideration in Opinion of the Justices,
233 Mass. 603, and in Loring v. Young, 239 Mass. 349.
According to the views there expressed, "rearrangement"
means a change in form without change in substance, while
"revision" means a change in substance as well as form
and contemplates the substitution of the new for the
old. The word "amendment," on the other hand, what-
ever else it may connote, at least implies that one thing
is to be altered or added to by another. It presupposes
JAY R. BENTON, ATTORNEY-GENERAL. 383
an existing structure. Shields v. Barrow, 17 How. 130,
144; Gagnon v. United States, 193 U. S. 451, 457. It
contemplates that, upon adoption, the thing so designated
shall become a part of that pre-existing structure. An
amendment is not a self-supporting entity. It must be
an amendment to something. It is incapable of existing
in vacuo.
Both a revision and a rearrangement which substitute
a new constitution for the old are essentially different from
an amendment. This was the conclusion of the justices
in Opinion of the Justices, 233 Mass. 603, 609, and in both
majority and minority opinions in Loring v. Young, 239
Mass. 349, 373, 375, 380, 400. In chapter VI, article X,
of the original Constitution the words "revision" and
"amendment" are used disjunctively, and in Gen. St. 1916,
c. 98, relative to the calling and holding of a constitutional
convention, the purpose of the proposed convention is
stated to be "to revise, alter or amend the constitution of
the commonwealth," and the delegates were authorized
to "take into consideration the propriety and expediency
of revising the present constitution of the commonwealth,
or making alterations or amendments thereof."
I conclude, therefore, that the power to amend the Con-
stitution is different from the power to establish a new
constitution superseding and replacing the old. The
power to amend the Constitution is the power to add to
or alter, but not to supersede. That the power conferred
upon the General Court by the forty-eighth amendment
to the Constitution is the power to initiate amendments
to the Constitution, not to initiate a revision of that Con-
stitution, seems to me beyond question. Amendments
are to be submitted to the voters; and such amendments
are to "become part of the Constitution if approved."
Senate Resolve No. 54 is entitled "Resolve to provide
that the Rearrangement of the Constitution adopted by the
voters in November, nineteen hundred and nineteen,
amended to conform to existing law, shall be the Con-
384 OPINIONS OF THE ATTORNEY-GENERAL.
stitution of the Commonwealth"; and purports to propose
''articles of amendment" providing that ''the Constitution
or form of government of the Commonwealth of Massa-
chusetts, adopted in seventeen hundred and eighty, and
the sixty-seven articles of amendment thereto, are hereby
deemed and taken to be revised, altered and amended
by the Rearrangement of the Constitution adopted by the
voters at the State election in November, nineteen hundred
and nineteen, which is hereby declared to be the Con-
stitution of the Commonwealth of Massachusetts," with
certain specified amendments thereto; and that "the
Constitution or form of government for the Common-
wealth of Massachusetts will then be as follows."
The court held in Loring v. Young, 239 Mass. 349, that
the Rearrangement of the Constitution submitted to the
voters in 1919 contained changes in substance as compared
with the Constitution of 1780 and its amendments, that the
Rearrangement, however, provided that in case of conflict
the old Constitution and its amendments should prevail,
that the voters did not intend to adopt a new form of govern-
ment, and that, accordingly, the old Constitution and its
amendments was still the fundamental law. It is this
very Rearrangement, set out anew in Senate Resolve
No. 54, with some amendments introducing further changes
in substance, as to which my opinion is now required.
The proposed resolve is, in my opinion, open to the
objection that it is a revision of the Constitution rather
than an amendment. Such is the plain purport of the
provisions that the so-called "Rearrangement" "is hereby
declared to be the Constitution of the Commonwealth of
Massachusetts" and that "the Constitution or form of
government for the Commonwealth of Massachusetts will
then be as follows." It proposes to substitute a new con-
stitution for the old. In my opinion, therefore, this "Re-
arrangement" is not within the terms of the amending
power, as defined in the forty-eighth amendment.
As I have said, the Constitution provides no method for
JAY R. BENTON, ATTORNEY-GENERAL. 385
making changes in it, except as set out in the forty-eighth
amendment, unless such provision is to be found in the
seventh article of the Bill of Rights. By virtue of this
declaration, the court has intimated that "the people of
the Commonwealth have under the Constitution the right
to alter their frame of government according to orderly
methods as provided by law, and through the medium of
an act of the Legislature," and that therefore the calling
of a constitutional convention may be sanctioned by the
Constitution. Opinion of the Justices, 226 Mass. 607, 610.
See also Opinion of the Justices, 6 Cush. 573.
But this does not mean that the Legislature may initiate
a revision of the Constitution. It has no inherent power
to submit to the people for ratification a new constitution,
nor can such a proceeding be supported either by custom
or as an orderly method provided by law. See Jameson
on Constitutional Conventions, 4th ed., §§ 570 and 574 h.
The proposing of constitutional amendments or of new
constitutions is hardly to be deemed a normal exercise of
legislative function, authority for which may be sought and
found in the general grant of legislative power under the
Constitution. 1 Deb. Mass. Conv. 1820, pp. 405, 407.
See Jameson on Constitutional Conventions, 4th ed., §§ 549
and 55L A suggestion has been made that the Legislature,
in passing a legislative amendment, should be regarded as
a constitutional convention, because the proposal must
be acted upon in a joint session of the Legislature. But
the distinction between a joint session of the Legislature
and a constitutional convention is, to my mind, both clear
and fundamental. A constitutional convention is perhaps
the most solemn, deliberate and highest assembly which
can be convened in this Commonwealth. Sproule v.
Fredericks, 69 Miss. 898. Constitutional conventions have
been held only three times since the adoption of the Con-
stitution in 1780. Delegates are elected to a constitutional
convention for the sole purpose of determining whether the
Constitution shall be revised, altered or amended. Legis-
386 OPINIONS OF THE ATTORNEY-GENERAL.
lative sessions are held annually. Members of the Legis-
lature are elected for the important purpose of enacting
all manner of wholesome and reasonable laws for the general
welfare of the people. It was never contemplated that the
duties of the two bodies should be merged in the General
Court, or that the Legislature, of its own initiative, should
have the right to submit a new constitution to the people.
My answer to your first question is therefore in the
negative. Reiterating, to avoid the possibility of mis-
understanding, that I interpret your questions as referring
to the existing Constitution and to the rights and powers
derived therefrom, and that by a "revised or rearranged
constitution" you mean a new constitution substituted in
place of and superseding the constitution now in force, what
I have already said covers your second and third questions.
1924
March 22
Constitutional Law — Taxation of Legacies and
Successions — Uniting Interests passing to
One Beneficiary.
a statute amending G. L., c. 65, § 1, as amended, so as to provide that all interests
in property passing or accruing to the same beneficiary, by any of the methods
therein specified, shall be united and treated as a single interest for the pur-
pose of determining the tax thereunder, would be constitutional.
Governor. You have transmitted to me for examination and report
House Bill No. 146, entitled "An Act providing for uniting
interests in connection with the taxation of legacies and
successions" and reading as follows: —
Section one of chapter sixty-five of the General Laws, as amended by-
chapter three hundred and forty-seven and by section one of chapter four
hundred and three both of the acts of nineteen hundred and twenty-two,
is hereby further amended by adding at the end thereof the following
new paragraph : — All property and interests therein which shall pass
from a decedent to the same beneficiary by any one or more of the methods
hereinbefore specified and all beneficial interests which shall accrue in
the manner hereinbefore provided to such beneficiary on account of the
death of such decedent shall be united and treated as a single interest for
the purpose of determining the tax hereunder.
JAY R. BENTON, ATTORNEY-GENERAL. 387
G. L., c. 65, § 1, as amended by St. 1922, c. 347 and c.
403, § 1, omitting the table of rates, is as follows: —
All property within the jurisdiction of the commonwealth, corporeal
or incorporeal, and any interest therein, belonging to inhabitants of the
commonwealth, and all real estate within the commonwealth or any in-
terest therein and all stock in any national bank situated in this common-
wealth or in any corporation organized under the laws of this common-
wealth belonging to persons who are not inhabitants of the commonwealth,
which shall pass by will, or by laws regulating interstate succession, or
by deed, grant or gift, except in cases of a bona fide purchase for full con-
sideration in money or money's worth, made in contemplation of the
death of the grantor or donor or made or intended to take effect in pos-
session or enjoyment after his death, ajid any beneficial interest therein
which shall arise or accrue by survivorship in any form of joint owner-
ship in which the decedent joint owner contributed during his life any
part of the property held in such joint ownership or of the purchase price
thereof, to any person, absolutely or in trust, except to or for the use of
charitable, educational or religious societies or institutions, the property
of which is by the laws of the commonwealth exempt from taxation, or
for or upon trust for any charitable purposes to be carried out within the
commonwealth, or to or for the use of the commonwealth or any town
therein for public purposes, shall be subject to a tax at the percentage
rates fixed by the following table:
Provided, however, that no property or interest therein, which shall
pass or accrue to or for the use of a person in Class A, except a grandchild
of the deceased, unless its value exceeds ten thousand dollars, and no
other property or interest therein, unless its value exceeds one thousand
dollars, shall be subject to the tax imposed by this chapter, and no tax
shall be exacted upon any property or interest so passing or accruing
which shall reduce the value of such property or interest below said
amounts.
The table of rates gives different percentages, from one
per cent to twelve per cent, varying with the value of the
property or interest and with the class of relationship.
This section imposes a legacy and succession tax on
property and interests therein, subject to the limitations and
exceptions therein provided, passing or accruing either (1)
by will, or (2) by laws regulating intestate succession, or
388 OPINIONS OF THE ATTORNEY-GENERAL.
(3) by deed, grant or gift made in contemplation of the death
of the grantor or donor, or (4) by deed, grant or gift made
or intended to take effect in possession or enjoyment after
his death, or (5) by sm-vivorship in any form of joint owner-
ship to which the decedent contributed.
In cases which have been before the court the Com-
missioner of Corporations and Taxation has assessed taxes
on property and interests therein passing or accruing to
a single person by more than one of the methods specified
in section 1, treating the different interests as a whole for
the purpose of determining the rate and amount of the
tax and the exemption. In Marble v. Treasurer and Receiver
General, 245 Mass. 504, taxes so assessed upon property
passing under a will and an interest in joint savings bank
deposits were held to be vahd; and in Pratt v. Dean, 246
Mass. 300, taxes so assessed upon property passing by will
and beneficial interests in trusts created during the testator's
lifetime, taking effect in enjoyment after his death, were
sustained by the court. In these cases the court intimates
that the rule would be different in the case of an interest
vesting in enjoyment or possession independently of the
death of the donor or testator. Therefore, as the statute
now stands it would be doubtful whether a gift made in
contemplation of death could be united with property
passing in the other ways described in section 1 , for the pur-
pose of assessing the tax thereunder. Apparently, also, it
would be doubtful whether a future interest could be so
united; although in Moors v. Treasurer and Receiver General,
237 Mass. 254, taxes which seem to have been assessed in
that way were approved. The proposed amendment
relieves the uncertainty and provides a uniform rule ap-
plicable to all the cases specified in section 1.
In my opinion, the proposed law, if enacted, would be
constitutional.
jay r. benton, attorney-general.
Pilots — Suspension — Revocation of Commission —
"Active Service."
Under the statutes, a commissioner of pilots may suspend a pilot whom he finds
to be guilty of misconduct, carelessness or neglect of duty, and he may revoke
the pilot's commission only with the concurrence of the trustees of the Boston
Marine Society.
Under the rules and regulations for pilotage for the Fourth Pilot District a pilot
holding a commission for service there may not be suspended except for mis-
conduct, carelessness or neglect of duty.
Such a pilot, if not under suspension or leave of absence, is in active service, and
should be assigned to pilotage duty.
389
To the Com-
You ask my opinion regarding the extent of your powers ,a?ssioner°"
under St. 1923, c. 390, to suspend or revoke the commissions }924'
of pilots in your district and to assign them to duty. -^ '
St. 1923, c. 390, made many important changes in the
previous law as to pilots, contained in G. L., c. 103. Section
1 of said chapter 390 strikes out the first fourteen sections
of said chapter 103 and substitutes therefor six sections, which
provide, among other things, in substance, for the division
of the shore line of the Commonwealth into four districts,
the appointment of commissioners and deputy commissioners
of pilots therefor, the formulation of rules and regulations
for pilotage and establishment of rates, the granting of
commissions to pilots, their suspension, and the revocation
of their commissions.
Under the previous law pilots, except for the harbor of
Boston, might be removed only by the Governor and
Council. G. L., c. 103, §§ 6-11, 13. This provision was
changed by the statute of 1923. G. L., c. 103, § 3, as thus
amended, is as follows : —
The commissioners, subject to the approval of the trustees of said
society, shall formulate rules and regulations for pilotage and establish
rates within their respective districts, . . . The commissioners also, in
accordance with such rules and regulations, shall grant commissions as
pilots for their districts or for special locations therein, to such persons
as they consider competent; provided that for district one such persons
shall first be approved by said trustees. The commissioners may, upon
satisfactory evidence of his misconduct, carelessness or neglect of duty,
suspend any such pilot until the next meeting of said trustees and may
390 OPINIONS OF THE ATTORNEY-GENERAL.
thereafter continue such suspension until the close of the next stated
meeting of said trustees, but no longer for the same offense. If said
trustees decide at either of said meetings that the commission of such
pilot ought to be revoked, the commissioners may revoke it at any-
time after said decision is rendered and before it is reversed. The com-
missioners shall cause the laws and regulations for pilotage within their
district to be duly observed and executed, and shall receive, hear and
determine complaints by and against pilots for said district.
The society therein referred to is the Boston Marine Society,
and the trustees are the trustees of that society.
On the subject of commissions of pilots St. 1923, c. 390,
§ 6, further provides : —
. . . But nothing herein contained shall affect the commissions of
pilots of any kind, except that after this act takes effect they may be
removed for the causes specified and in the manner provided in section
three of said chapter one hundred and three, as amended by this act. . . .
These provisions make it clear that the pilots in your
district may be removed and their commissions revoked
by the Commissioner in the way, and only in the way,
provided by section 3, quoted above. The Commissioner
may, upon satisfactory evidence of the misconduct, care-
lessness or neglect of duty of a pilot, suspend such pilot
until the next meeting of the trustees of the Boston Marine
Society, and may continue such suspension thereafter until
the close of the next stated meeting of the trustees. If the
trustees decide at either of those meetings that the com-
mission of the pilot ought to be revoked, the Commissioner
may then revoke it. The Commissioner's power, there-
fore, is limited to suspending, in the first instance, a pilot
whom he finds to be guilty of misconduct, carelessness or
neglect of duty, and he may revoke the pilot's conmiission
only after the trustees of the Boston Marine Society have
decided that the commission ought to be revoked. He has
no power to suspend a pilot except upon such a finding.
In the case of Lunt v. Damson, 104 Mass. 498, 502, the
meaning of the words "misconduct, carelessness or neglect
JAY R. BENTON, ATTORNEY-GENERAL. 391
of duty," as used in a similar statute, was considered by the
court, and the court said : —
The causes of removal are very general and indefinite, — "misconduct,
carelessness or neglect of duty." It is only requisite that the evidence
of either of these should be satisfactory to the commissioners. From the
nature of the case, this involves not merely the credibility and sufficiency
of the proof of the facts relating to the conduct of the pilot, but also the
question whether the facts so proved furnish satisfactory evidence of
misconduct, carelessness or neglect of duty. The propriety of the con-
duct of a pilot, in the performance of his official duties, as observed by
the commissioners or shown by evidence brought to them, can be judged
of best by men having constant familiarity with the circumstances and
requirements of the service. If from neglect, inattention, or any want
of faithfulness, the service of a pilot should fall short of that which is due
to the responsibilities of the position, we think the terms of the statute
would authorize the commissioners to regard that deficiency as satis-
factory evidence of carelessness or neglect of duty, although no specific
act of misconduct should be alleged.
You have submitted to me a copy of rules and regulations
for pilotage for the Fourth Pilot District, formulated and
approved as required by said section 3. Rules 1, 23 and
24 are as follows : —
1. All pilots shall hold themselves in readiness for pilotage service at
all times, provided, however, that the Commissioner may grant permis-
sion for leave of absence from such duty in his discretion.
23. All pilots in active service shall be assigned to pilotage duty by the
Commissioner. The work shall be apportioned equally among said
pilots, and all income from said pilotage, after deducting the necessary
expenses incident to the work of pilotage, shall be equally divided among
said pilots every thirty days.
24. Any pilot proven to have violated these regulations, or the state
laws which accompany them, except for reasons which meet with appro-
bation of the Commissioner, shall be liable to suspension.
The words "in active service," as used in rule 23 with
reference to pilots, naturally designate all pilots not under
suspension or leave of absence as provided by rule 1, and
392 OPINIONS OF THE ATTORNEY-GENEEAL.
in the absence of information as to a different practical
construction I so construe them. It is my judgment that
a pilot holding a commission for service in your district
may not be suspended by you except for misconduct,
carelessness or neglect of duty, and that, since the passage
of the statute of 1923 and the adoption of the rules and
regulations, such a pilot, if he is not under suspension or
leave of absence, is in active service within the meaning
of those words as used in rule 23, and should be assigned
by you to pilotage duty.
You also ask with respect to a pilot who has been out of
active service in local waters for some period of time,
whether you have the power to assign him to go along with
another pilot of experience, and under his guidance, for a
number of trips sufficient to enable him to familiarize
himself with any changes which may have occurred in those
waters since the time of his last service.
Rule 23 requires you to assign all pilots in active service
to pilotage duty. The words "pilotage duty," as used in
rule 23, plainly mean the duty of acting as pilot for vessels
entering or leaving the waters within the district. See
State V. Turner, 34 Ore. 173; Maclachlan's Law of Merchant
Shipping, 6th ed., p. 207. For performing this service a
pilot is entitled to receive pilotage fees. It is no part of
the duty of a pilot either to instruct or to receive instruction
from another pilot. The powers and duties of pilots and of
the Commissioner are determined by the statutes and the
rules and regulations, but they contain no provision for the
instruction of pilots. I am therefore of the opinion that
you have no power to assign the pilot you refer to to serve
with and under the guidance of another pilot.
I do not, of course, intimate that the pilot you mention
has no duty in the premises. He is by statute made liable
for all damages accruing from his negligence, unskilfulness
or unfaithfulness. G. L., c. 103, § 18. If, owing to absence,
he has become unfamiliar with the waters in his district,
it would seem a natural precaution that he should make
JAY R. BENTON, ATTORNEY-GENERAL. 393
himself familiar with them. This duty is well stated in
Atlee V. Packet Co., 21 Wall. 839, 396, 397, as follows: —
In the active life and changes made by the hand of man or the action
of the elements in the path of his vessel, a year's absence from the scene
impairs his capacity, his skilled knowledge, very seriously in the course
of a long voyage. He should make a few of the first "trips," as they are
called, after his return, in company with other pilots more recently fa-
miliar with the river.
District Attorneys — Traveling Expenses — Other
Expenses.
Except in Suffolk County, traveling expenses of district attorneys and assistant
district attorneys, necessarily incurred in the performance of their official
duties, are to be paid by the Commonwealth and not by the county.
All other expenses necessarily incurred are to be paid by the county for the benefit
of which they were contracted.
You request my opinion whether traveling expenses of ^"Jjo^n^"^"
district attorneys and assistant district attorneys are to and'xaxaHon.
be paid by the Commonwealth or by the county for the ipriir.
benefit of which they were contracted.
G. L., c. 12, § 23, pro\ddes: —
Except in the Suffolk district, district attorneys and assistant district
attorneys shall receive for traveling expenses necessarily incurred in the
performance of their official duties such sums as shall be approved by a
justice of the superior court, to be paid by the commonwealth.
Section 24 of the act provides : —
A district attorney, in the name of any county in his district, may
contract such bills for stationery, experts, travel outside of the common-
wealth by witnesses required by the commonwealth in the prosecution of
cases, for necessary expenses incurred by officers under his direction in
going outside of the commonwealth for the purpose of searching for or
bringing back for trial persons under indictment in said county, and for
such other expenses as may in his opinion be necessary for the proper
conduct of his office in the investigation of or preparation and trial of
criminal causes; and all such bills shall be paid by the county for the
benefit of which they were contracted upon a certificate by the district
394 OPINIONS OF THE ATTORNEY-GENERAL.
attorney that they were necessarily incurred in the proper performance
of his duty, and upon approval of the auditor of Suffolk county if the
bills were incurred for said county, otherwise upon the approval of the
county commissioners or of a justice of the superior court.
The two sections must be read together. So read, they
clearly differentiate between traveling expenses of district
attorneys and assistant district attorneys and other ex-
penses incurred by such officers. Accordingly I am of the
opinion that, except in Suffolk County, traveling expenses
of district attorneys and assistant district attorneys neces-
sarily incurred in the performance of their official duties
are to be paid by the Commonwealth and not by the county.
All other expenses incurred by the district attorney, which
in his opinion are necessary for the proper conduct of his
office in the investigation of or preparation and trial of
criminal causes, are to be paid by the county for the benefit
of which they were contracted.
Board of Registration in Pharmacy — Agent — Powers
— Inspection of Drug Stores — Right to use
Force — Taking of Samples.
The inspection of drug stores, which an agent of the Board of Registration in
Pharmacy may make, must be reasonable, with a view to accomplishing the
purpose of the statute.
Opening closets, pulling out drawers and examining the contents of cans, jugs and
other containers is a reasonable mode of inspection.
Such agent may probably not use force to gain entry to a drug store for the pur-
pose of making an inspection.
If peaceable entry is obtained, an inspection may probably be made against the
owner's will.
Right to take samples is not incidental to or part of the right to inspect.
The agent of the Board of Registration in Pharmacy may not take samples with-
out the consent of the person in charge of the store.
Department of ^^ behalf of the Board of Registration in Pharmacy you
'^iga/®''"'"'®- ask my opinion on questions of law relative to the powers
of the agent of that board appointed under G. L., c. 13, § 25,
as amended by St. 1922, c. 441 . That act reads as follows : —
April 8.
JAY R. BENTON, ATTORNEY-GENERAL. 395
The board (of registration in pharmacy) shall appoint and fix the com-
pensation, with the approval of the governor and council, of an agent
who shall be allowed his necessary traveling expenses. He shall inspect
drug stores and make a daily report of his doings pertaining thereto, and
report all violations of the laws relating to pharmacy .
Your first question is as follows :
Has the agent the power to open closets, pull out drawers, examine
contents of cans, jugs and other containers in a drug store which he is
engaged in inspecting?
An inspection is "a strict or prying examination; a close
or careful scrutiny; a critical examination; a formal or
official inquiry by actual observation into the state, ef-
ficiency, safety, quality, etc., of something of special moment,
as drugs." Century Dictionary; 32 C.J. 930.
In People v. Compagnie Generale Transatlantique, 107
U. S. 59, 62, the court said: —
What is an inspection? Something which can be accomplished by
looking at or weighing or measuring the thing to be inspected, or apply-
ing to it at once some crucial test.
An inspection may be very general or it may be very
minute. 32 C. J. 930. The manner in which an inspection
shall be made depends entirely upon the requirements of
the statute and the nature of the merchandise to be in-
spected. 22 Cyc. 1366. It must be reasonable, of such a
nature as to be of value and must have a rational connection
with the end to be accomplished. Commonwealth v. Moore,
214 Mass. 19.
The statute in question provides that an agent of the
Board of Registration in Pharmacy shall inspect drug stores
and report all violations of the laws relating to pharmacy.
The language of the act is comprehensive; its object is
to protect and promote pubhc health. It is manifestly
within the police power of the State. Commonwealth v.
Moore, 214 Mass. 19; Commonwealth v. Wheeler, 205 Mass.
396 OPINIONS OF THE ATTORNEY-GENERAL.
384; Commonwealth v. Carter, 132 Mass. 12; Pittsburg &
Southern Coal Co. v. Louisiana, 156 U. S. 590, 599. The
inspection which may be made by the agent of the board
must be reasonable, with a view to accompUshing the
purpose of the statute.
Taking into consideration the foregoing factors, I am of
the opinion that opening closets, pulling out drawers and
examining the contents of cans, jugs and other containers
is a reasonable mode of inspection. Accordingly, I am of
the opinion that your first question should be answered in
the affirmative.
The agent may, however, probably not use force to gain
entry to a drug store for the purpose of making an in-
spection. The cases sustaining the right of officers author-
ized by statute to make entry for the purpose of inspection
refer to peaceable entry. They do not hold that entry
may be made by force against the will of the owner or
occupant. Whether such entry would be lawful is left
in doubt. See VI Op. Atty. Gen. 288. If, however, peace-
able entry to the drug store has been obtained, the court
seems to intimate that an inspection can be made even
against the will of the owner. Commonwealth v. Smith,
141 Mass. 135, 139. This question, however, is not free
from doubt.
Your second question is as follows :
Can the agent take a sample of suspected illegal liquor for analysis,
for presentation as evidence before the Board of Registration in Phar-
macy, without the consent of the person in charge at the store?
The right to take samples is not, in the absence of express
authority, incidental to or part of the right to inspect.
In Commonwealth v. Smith, 141 Mass. 135, 139, the court
said : —
The right to take samples of milk against the will of the owner can
only be justified by an act of the Legislature regulating a business which
otherwise might become injurious to the communit^^
JAY R. BENTON, ATTORNEY-GENERAL, 397
This right cannot be extended beyond its express scope.
Dunn V. Lowe, 203 Mass. 516; CommonxDealth v. Smith,
141 Mass. 135, 139. Wherever in this Commonwealth
samples may be taken by inspectors, the right has been ex-
pressly conferred by statute. G. L., c. 94, § 304, specifically
provides for the furnishing of samples of drugs to an officer
or agent of the Department of Public Health upon tender
of the value thereof.
G. L., c. 13, § 25, as amended, does not authorize the
taking of samples. I am therefore of the opinion that, in
the absence of specific authorization, the agent of the board
may not take samples, and that your second question should
be answered in the negative.
Plumbers — Apprentice — Journeyman — Probation-
ary License.
a person learning the business of plumbing may not lawfully be sent out to do the
work of a journeyman plumber unless he is registered or has been licensed tvs
required by G. L., e. 142, § 3, except that a person who has worked as an
apprentice or under a verbal agreement for instruction, for not less than three
years, and has complied with the requirements of G. L., c. 142, § 4, may have
issued to him a probationary license under which he may be sent out to do
the work of a journeyman.
You request my opinion on questions of law arising out Exam?n!rs of
of R. L., c. 103, § 9, and St. 1909, c. 536, § 2. ""i;^^^'''-
The Revised Laws were supplanted by the General Laws,
which took effect from and after December 31, 1920. G. L.,
c. 282, expressly repeals both R. L., c. 103, § 9, and St. 1909,
c. 536, § 2. It is clear that it would serve no useful purpose
to discuss questions of law involving the interpretation of
statutes that have been repealed. I am, however, going
to take the liberty of discussing the questions raised by you
in the light of the provisions of the statutes that exist
today in our General Laws.
Your first question, revised, would read as follows: Does
April 8.
398 OPINIONS OF THE ATTOKNEY-GENERAL.
G. L., c. 142, § 14, prohibit an apprentice or learner from
working without a Ucense?
Said section 14 reads as follows : —
Sections one to sixteen, inclusive, shall apply to all persons learning
the business of plumbing when they are sent out to do the work of a
journeyman.
Therefore, section 3 of said chapter 142 applies to persons
learning the business of plumbing when they are sent out
to do the work of a journeyman plumber. Said section
3 prohibits any person from engaging in the business of
working as a journeyman plumber unless he is lawfully
registered or has been licensed by the examiners, as provided
in this chapter; so that, answering your first question, a
person learning the business of plumbing may not be sent
out to do the work of a journeyman plumber unless he is
lawfully registered or has been licensed.
Your second question, revised, would read as follows:
Does the probationary license, as described in and issued
under G. L., c. 142, § 4, fill any gap left in G. L., c. 142,
§14?
So far as is pertinent to your inquiry said section 4 reads
as follows : —
The examiners may, without payment of any fee, issue a probationary
license in force for six months to a person who, having worked as an
apprentice, or under a verbal agreement for instruction, for not less than
three years, presents an application therefor with the signed endorse-
ment of his employer agreeing to be responsible for all work done under
the license and to have the licensee, at the expiration of the license, pre-
sent himself for examination as a journeyman.
Consequently, as the law stands today, a person, having
worked as an apprentice or under a verbal agreement for
instruction, for not less than three years, and complying
with the other requirements set forth above, may have
issued to him a probationary Ucense under which he may
be sent out to do the work of a journeyman.
April 9.
jay r. benton, attorney-general. 399
Metropolitan Police Officer — Expenses as Witness
— Reimbursement.
a metropolitan police officer who attends as a witness in a criminal case at a place
other than his residence, and whose attendance is not in the performance of
the duties for which he is paid a salary, is entitled to a witness fee.
In all other cases, with certain minor exceptions, the expenses of such officer,
necessarily and actually disbursed by him for testifying in a cruuinal case
in the Superior Court, should be paid by the county. If the case is tried in
a district court or before a trial justice, such expenses should be paid by the
town where the crime was committed.
You request my opinion whether a metropolitan district po^utan ofstrict
police officer who, by the order of the district attorney, i°J|^^"''°"'
appeared as a witness in the Superior Court held at Brockton
at the trial of a person charged with crime, and who incurred
expenses in so appearing, is entitled to be reimbursed by the
county where the trial was held.
G. L., c 262, § 50, provides, in part: —
No . . . police officer who receives a salary or an allowance by the
day or hour from the commonwealth or from a county, city or town shall,
except as otherwise hereinafter provided, be paid any fee or extra com-
pensation ... for testifying as a witness in a criminal case during the
time for which he received such salary or allowance; . . . but his ex-
penses, necessarilj^ and actually incurred, and actually disbursed by him
in a criminal case tried in the superior court, shall, except as provided
in section fifty-two, be paid by the county where the trial is held . . .
Section 52 provides : —
Except in Suffolk county, the fees and expenses of officers in the appre-
hension, trial or commitment of a person arrested or tried as a tramp or
vagrant shall be paid by the county where the offence was committed.
Section 53 provides, in part, as follows : —
Any officer named in section fifty who attends as a witness at a place
other than his residence shall, instead of his expenses, be allowed the wit-
ness fee in the court or before the trial justice where he testifies. . . .
In my opinion a metropolitan district police officer is
included in the class of persons enumerated in section 50.
Sections 56 and 57 have no application to such officer.
400
OPINIONS OF THE ATTORNEY-GENERAL.
In construing R. L., c. 204, §§42 and 44, now G. L., c.
262, §§ 50, 53, above referred to, the court said, in Sackett
V. Sanborn, 205 Mass. 110, 112: —
The object of the statute is to provide that officers who receive com-
pensation for their services by salary or otherwise, and attend court in
the discharge of duties which they are thus paid to perform, shall not re-
ceive further compensation by way of witness fees, but that any expenses
necessarily and actually incurred or disbursed by them in the performance
of such duties in attending court in criminal cases shall be reimbursed to
them. If they attend court, but not in the performance of the duties for
which they are paid, at a place other than their residence, then, . . .
instead of their expenses they are to be allowed witness fees.
I am accordingly of the opinion that if a metropolitan
district police officer attends as a witness at a place other
than his residence, and his attendance is not in the per-
formance of the duties for which he is paid a salary or
allowance, he is entitled to a witness fee in the court or before
the trial justice where he testifies. In all other cases, with
the exception of the cases referred to in G. L., c. 262, § 52,
the expenses of such officer, necessarily and actually in-
curred and actually disbursed by him for testifying as a
witness in a criminal case tried in the Superior Court,
should be paid by the county where the trial is held; and
if the case is tried in a district court or before a trial justice,
such expenses should be paid by the town where the crime
was committed.
To the House
Committee on
Bills in the
Third Reading.
1924
April 10.
Constitutional Law — Undertakers — Licenses —
Registered Embalmers.
a statute limiting the is.suance of undertakers' licenses to registered erabalmers
would be unconstitutional.
The presumption of constitutionalty does not attach to a bill not yet enacted into
law.
You request my opinion as to whether House Bill No. 615,
with certain changes indicated by you, would be con-
stitutional if enacted into law.
House Bill No. 615 is entitled "An Act to require mider-
JAY R. BENTON, ATTORNEY-GENERAL. 401
takers to be registered embalmers," and, with the changes
specified in your letter, would read as follows : —
Chapter one hundred and fourteen of the General Laws is hereby
amended by striking out section forty-nine and inserting in place thereof
the following: — Section Jf9. Boards of health shall annually, on or
before May first, license a suitable numljer of undertakers who can read
and write the English language and who shall be registered embalmers.
Such license shall be issued upon such terms and conditions as the board
of health maj^ prescribe, and may be revoked at any time by the board
if its terms or conditions or any requirements of law relative thereto have
been violated by the undertaker. An undertaker so licensed may act
in any town. Nothing herein contained shall prevent such board from
granting a license to any person licensed as an undertaker prior to June
first, nineteen hundred and twentj^-four.
In Wyeth v. Board of Health of the City of Cambridge, 200
Mass. 474, decided in 1919, the Supreme Judicial Court
held that a regulation of the Board of Registration in Em-
balming, requiring all undertakers to be licensed embalmers,
was unconstitutional, and that the refusal of the respondents
to grant to an applicant a license as an undertaker, solely
upon the ground that the applicant was not a licensed
embalmer, was an invasion of a constitutional immunity,
to redress which a writ of mandamus would issue. In the
course of the opinion Knowlton, C. J., speaking for the court,
said : —
We can see no such connection between requiring all undertakers to
be licensed embalmers and the promotion of the public health as to bring
the making of this regulation by the board of registration in embalming,
or the refusal of a license bj'' the board of health on account of the regu-
lation within the exercise of the police power by the State. If such a
regulation had been made by an act of the Legislature, with all the strong
presumptions of constitutionality which attach to legislative action, we
should hesitate to affirm the constitutionality of the act. But action
by such a board, under mere general authorit}^ to make rules and regu-
lations, does not carry -ndth it these strong presumptions. We consider
this action without foundation in law or reason, and in \dolation of the
constitutional rights of our citizens.
A statute of New York, which provided, among other things, that no
person should engage in the business of undertaking unless he had been
402 OPINIONS OF THE ATTORNEY-GENERAL.
duly licensed as an embalmer, was held unconstitutional by a unanimous
decision in the appellate division of the Supreme Court of that State.
People V. Ringe, 125 App. Div. (N. Y.) 592.
In the face of so clear an intimation of the opinion of
the Supreme Judicial Court there appears little room for
speculation in the present case. Further, the "strong pre-
sumptions of constitutionality which attach to legislative
action," referred to in the opinion, are inapplicable to a bill
not yet enacted into law. The presumption is justified
by the belief that the enactment of a law presupposes that
the Legislature, in the light of its own knowledge and of the
best legal advice available to it, has determined that author-
ity to pass such a law is included within the powers delegated
to it by the Constitution. To invoke the presumption
during the consideration of a proposed enactment would
be to destroy the very foundation upon which that pre-
sumption rests.
I am accordingly constrained to advise you that, in my
opinion. House Bill No. 615, with the changes specified by
you, if enacted into law would be unconstitutional.
Highways — State Highways — Layout.
Under St. 1922, c. 501, as amended by St. 1923, c. 481, providing for the laying
out and construction, by the Division of Highways, of a highway in the city
of Revere, the city cannot be required to make the layout, and no part of
the cost may be assessed upon the county.
A way does not become a State highway, under G. L., c. 61, until it has been "laid
out and taken charge of" by the division in behalf of the Commonwealth.
Since St. 1922, c. 501, as amended, does not require the division to take charge
of the proposed highway, it was not intended to provide that the highway
should be a State highway.
m?ssionS''of" You request my opinion as to the proper procedure in
PubHc Works. j^y.^g ^^^ ^^^ highway authorized by St. 1922, c. 501;
^^^' and put the three following questions : —
1. Shall it be laid out as a State highway under the provisions of G. L.,
c. 81?
2. May the division require the city of Revere to make the layout?
JAY R. BENTON, ATTORNEY-GENERAL. 403
3. If laid out as a State highway, can 25 per cent of the cost be as-
sessed upon the county, under the provisions of G. L., c. 81, § 9, as
amended by St. 1921, c. 112, § 2, and St. 1923, c. 362, § 63?
St. 1922, c. 501, as amended by St. 1923, c. 481, reads as
follows : —
Section 1. The division of highways of the department of public
works is hereby authorized and directed to lay out and construct a high-
way in the city of Revere beginning at the Maiden line on or near the
present way leading from Revere to that part of the city of Maiden known
as Linden and extending to Broadway in said city of Revere. The route
of such layout and construction may be along existing public or private
ways or over private land; provided that no work shall be done on the
construction of said highway until satisfactory releases have been ob-
tained from the owners for all land to be used for said highway without
expense and that the city of Maiden shall have made the necessary ap-
propriations and undertaken the construction of connections satisfactory
to said division, said connection in Maiden to run from the Revere line
through Linden square, Beach and Salem streets and over private labd
to the Newburyport Turnpike.
Section 2. For the purposes of this act, the division may expend a
sum not exceeding one hundred thousand dollars. Of the total amount
expended, one haU shall be assessed upon the metropolitan parks dis-
trict and the balance shall be paid by the commonwealth from item num-
ber six hundred and thirty-one of the general appropriation act of the
current year.
Section 2 was superseded by St. 1923, c. 494, item 623 b,
which provides as follows : —
For the construction of a highway in the city of Revere, as
authorized by chapter five hundred and one of the acts of
nineteen hundred and twenty- two, as amended by chapter
four hundred and eighty-one of the acts of the present year,
at a cost not exceeding one hundred thousand dollars, one
half of which shall be assessed upon the metropolitan parks
district, and the balance of fifty thousand dollars shall be
paid from Motor Vehicle Fees Fund . . . .$50,000.00
G. L., c. 81, entitled "State Highways," provides, in
sections 4 to 12 inclusive, for the laying out of State high-
404 OPINIONS OF THE ATTORNEY-GENERAL.
ways by petition by county commissioners, aldermen or
selectmen to the Division of Highways, determination by
the division that public necessity and convenience require
that the proposed way should be laid out and taken charge
of by the Commonwealth, and the filing of a plan and
certificate showing that the division has laid out and taken
charge of the way in accordance with the plan. Provisions
prescribing the method to be followed are contained in
sections 4 and 5 as follows : —
Section 4. If county commissioners, aldermen or selectmen adjudge
that public necessity and convenience require that the commonwealth
lay out and take charge of a new or existing way as a highway in whole
or in part, in their county, city or town, they may apply, by a written
petition, to the division, requesting that said way be laid out and taken
charge of by the commonwealth.
Section 5. If the division determines that public necessity and con-
venience require that such way should be laid out or be taken charge of
by the commonwealth, it shall file in the office of the county commis-
sioners for the county where the way is situated a certified copy of a plan
thereof, a copy of the petition therefor, and a certified copy of a certifi-
cate that it has laid out and taken charge of said way in accordance with
said plan, and shall file in the office of the clerk of such town a copy of
the plan showing the location of the portion lying in each town and a
, copy of the certificate that it has laid out and taken charge of said high-
way in accordance with said plan . . .
Section 5 provides that "thereafter said way shall be a State
highway, and shall be constructed by the division at the
expense of the Commonwealth."
Section 24 provides as follows : —
The division may, whenever any money is appropriated by the general
court for its use in the construction or improvement of any particular
way, expend such money in constructing or improving the whole or such
part of said way as it deems best, either upon the location of the existing
way or upon any new location that may be established by the count}^
commissioners or the selectmen, and no part of the way so improved
shall thereby become a state highway or be maintained as such. The
division may, however, lay out the whole or any part of any such way as
a state highway.
JAY R. BENTON, ATTORNEY-GENERAL. 405
Section 13 provides that "state highways shall be main-
tained and kept in good repair and condition by the division
at the expense of the Commonwealth," and section 18 pro-
vides that "the Commonwealth shall be liable for injuries
sustained by persons while traveling on state highways,
if the same are caused by defects within the limits of the
constructed traveled roadway, in the manner and subject
to the limitations, conditions and restrictions specified in
sections fifteen, eighteen and nineteen of chapter eighty-
four," with certain exceptions therein specified. G. L.,
c. 84, § 1, provides that "highways and town ways shall,
unless otherwise provided, be kept in repair at the expense
of the town in which they are situated"; and section 15
provides that the "county, city, town or person by law-
obliged to repair the same" shall be liable in damages for
injuries from defects therein.
In view of the plain provisions in St. 1922, c. 501, as
amended, authorizing and directing the Division of High-
ways to lay out and construct the highway in question,
and providing for payment of the cost of construction,
one-half by the metropolitan parks district and the balance
from the motor vehicle fees fund, it is my opinion that the
division may not require the city of Revere to make the
layout, and that no part of the cost may be assessed upon
the county. I therefore answer your second and third
questions in the negative.
Your first question, whether the highway shall be laid
out as a State highway under the provisions of G. L., c.
81, depends upon the proper construction of St. 1922, c.
501, as amended, in the light of general statutorj^ provisions.
The answer requires consideration of the legislative intention
with respect to the burden of maintenance and liability
for injuries due to defects — whether it was intended that
those obligations should be borne by the Commonwealth
or by the local communities. If the former, then clearly
the way is to be laid out as a State highway; otherwise not.
The direction to the division is "to lay out and construct
406 OPINIONS OF THE ATTORNEY-GENERAL.
a highway, etc." The highway is not designated as a
State highway, and the statute contains no direction to
the division requiring it to take charge of the highway. In
those respects the statute differs from other statutes pro-
viding for the construction of other particular highways.
See, for example, St. 1907, c. 574, providing that "the
Massachusetts highway commission shall lay out, take
charge of and construct as a state highway" a part of
Washington Street in the West Roxbury district of Boston.
The words "lay out," when used in statutes with reference
to highways, mean locating and establishing a new highway.
The imposition upon certain public authorities of the duty
of laying out a highway does not necessarily carry with it
the right of control by them and the further duty of main-
taining that way when laid out and constructed. Foster
V. Park Commissioners, 133 Mass. 321, 329, 333; Leahy v.
Street Commissioners, 209 Mass. 316, 317. For that reason
the words "take charge of" are used in G. L., c. 61, in con-
junction with "lay out," and a way does not become a
State highway under that chapter until it has been "laid
out and taken charge of" by the division in behalf of the
Commonwealth. I Op. Atty. Gen. 284.
It is my opinion that the Legislature, in providing that
the division shall lay out and construct the proposed high-
way, did not intend to require the division also to take
charge of and maintain the highways or to impose on the
Commonwealth liability for injuries from defects therein,
and that therefore it did not intend to provide that the
highway so laid out and constructed should be a State
highway. I therefore answer your first question in the
negative.
jay r. benton, attorney-general. 407
Constitutional Law — Police Power — Restriction of
Importation of Cattle.
State laws requiring inspection of property intended for domestio use, passed for
the protection of the public health, morals or safety, or to guard the public
from fraud, are not open to attack as in contravention of the commerce clause
of the Constitution of the United States unless they directly discriminate
against interstate commerce or are inconsistent with Federal legislation under
the commerce clause.
A statute providing that no cattle which react to the tuberculin test shall be shipped
into the Commonwealth would be in direct conflict with national legislation
contained in the Act of February 2, 1903, c. 349, § 1 (32 Stat. 791), and would
therefore be invalid.
You have asked my opinion as to the constitutionaUty to the House
•^ ^ •/ Committee on
of House Bill No. 382, entitled "An Act to prevent the ^UJ^ciReading.
shipment into the Commonwealth of diseased cattle." aSI\6.
The bill provides for the amendment of G. L., c. 129, § 27,
by adding at the end thereof the following : —
No cattle to be used for dairy purposes shall be shipped into the com-
monwealth unless such cattle have been given a tuberculin test, and
declared to be free from dangerous diseases, by a competent veterinary
surgeon, approved by the director. No cattle which react to the tuber-
culin test shall be shipped into the commonwealth.
The proposed law, if valid, evidently must be supported
as a proper exercise of the State police power. If it is
invalid, the objection to it must be that it is an unlawful
interference with interstate commerce. State laws requiring
inspection of property intended for domestic use, passed
for the protection of the public health, morals or safety, or
to guard the public from fraud, are not open to attack as
in contravention of the commerce clause of the Constitution
of the United States unless they directly discriminate
against interstate commerce or are inconsistent with
Federal legislation under the commerce clause. Plumley
V. Massachusetts, 155 U.S. 461; Patapsco Guano Co. v. North
Carolina, 171 U. S. 345; Savage v. Jones, 225 U. S. 501.
The United States Supreme Court has held uncon-
stitutional a statute restraining the importation of cattle
into a State in such a way as to prevent the bringing in
408 OPINIONS OF THE ATTORNEY-GENERAL.
of cattle which are healthy as well as those that are diseased,
on the ground that such legislation was in conflict with the
commerce clause. Railroad Co. v. Husen, 95 U. S. 465.
So, also, statutes in the guise of inspection laws employed
to exclude the products and merchandise of other States
have been held unconstitutional because they discriminated
against interstate commerce. Minnesota v. Barber, 136
U. S. 313; Voight v. Wright, 141 U. S. 62. On the other
hand, it has held that a statute prohibiting transportation
of cattle into a State without inspection by State or national
officials was constitutional, such legislation not being in
conflict with any act of Congress. Reid v. Colorado, 187
U. S. 137; Ashell v. Kansas, 209 U. S. 251.
I am of the opinion that the proposed law is in conflict
with national legislation, to which it must yield. In the
Act of February 2, 1903, c. 349, § 1 (32 Stat. 791), it is en-
acted that when an inspector of the Bureau of Animal In-
dustry has issued a certificate that he has inspected cattle
or other livestock and found them free from infectious, con-
tagious or communicable disease, ''such animals, so inspected
and certified, may be shipped, driven, or transported . . .
into . . . any state or Territory . . . without further
inspection or the exaction of fees of any kind, except such
as may at any time be ordered or exacted by the Secretary
of Agriculture." Concerning this very statute the court
said, in Asbell v. Kansas, supra, 258 : —
There can be no doubt that this is the supreme law, and if the state
law conflicts with it the state law must yield.
The provision in the proposed law that "no cattle which
react to the tuberculin test shall be shipped into the com-
monwealth" appears to be in direct conflict with this pro-
vision.
In my opinion, therefore, the bill would not be valid if
enacted, because of the superior authority of the Federal
statute.
jay r. benton, attorney-general. 409
Hunting and Fishing — Certificate of Registration
— Violation of Fish and Game Laws.
Every certificate to hunt, trap and fish issued under G. L., c. 131, §§ 3-14, as
amended, becomes void upon the conviction of the holder thereof of any
violation of the fish and game laws, and no such certificate may be given to
any person so convicted during the period of one year from the date of his
conviction.
You request my opinion on the following questions l^J^^^^,^"^!'
relative to the granting and revocation of fishing and conservation.
hunting certificates : — ApnM?.
1. Under G. L., c. 131, § 14, would a person convicted of any violation
of any section or any provision of a section of G. L., cc. 130 and 131,
forfeit any fishing or hunting certificate he may possess?
2. Would a conviction of a violation of a fish law or of a game law pre-
vent a person from securing both a hunting and a fishing certificate dur-
ing the period of one year following the conviction?
3. Would a person who did not hold either a hunting or a fishing cer-
tificate and who was convicted of a violation of any provision of chapters
130 and 131 forfeit his right to secure a certificate for a period of one
year from the date of his conviction?
G. L., c. 131, §§ 3-14, as amended by St. 1921, c. 467,
provide for three classes of certificates of registration,
namely, a combination certificate to hunt, trap and fish,
a certificate to hunt and trap, and a certificate to fish.
Section 14, as amended by St. 1921, c. 467, § 8, provides,
in part : —
. . . Every certificate issued under sections three to fourteen, inclu-
sive, held by any person convicted of a violation of the fish and game
laws or of any provision of said sections, shall be void, and shall immedi-
ately be surrendered to the officer securing such conviction. The officer
shall forthwith forward the certificates to tlie director, who shall cancel
the same, and notify the clerk issuing them of the cancellation thereof.
No person shall be given a certificate under authority of said sections
during the period of one year from the date of his conviction as afore-
said. Any such certificate issued to a person within one year of his con-
viction as aforesaid shall be void, and shall be surrendered on demand
of any officer authorized to enforce the fish and game laws. . . .
410 OPINIONS OF THE ATTORNEY-GENERAL.
It is plain that under the statute every certificate issued
under G. L., c. 131, §§ 3-14, as amended, becomes void
upon the conviction of the holder thereof of any violation
of the fish and game laws, and that no certificate of any class
may under these sections be given to any person so convicted
during the period of one year from the date of his con-
viction.
I am accordingly of the opinion that all of your questions
should be answered in the affirmative.
Tuberculosis Hospitals — Apportionment of Cost.
In providing for an apportionment of the cost of a public undertaking among cities
and towns or other political subdivisions of the Commonwealth benefited
thereby, and also in shifting the burden thereof, the Legislature has a large
measure of discretion, the exercise of which is not subject to judicial control,
on constitutional grounds, unless it is purely arbitrary.
A statute changing the previous law by including in the district served by the
Essex County Tuberculosis Hospital cities previously exempted, and requir-
ing them to bear a part of the burden of the cost of its construction and main-
tenance, apportioned in a way which, under all the circumstances, would be
fair and reasonable, would be constitutional.
s^nSl You have submitted to me Senate Bill No. 468, entitled
Ma^y 1 "An Act to enlarge the present tuberculosis hospital district
within the county of Essex and to apportion certain costs
incident thereto." and have requested my opinion on the
following questions relative to said bill : —
(1) Inasmuch as the cities in Essex county now exempt from the pro-
visions of section seventy-eight to ninety of chapter one hundred and
eleven of the General Laws have a majority of the registered voters who
elect the trustees of the tuberculosis hospital for said county, does not
such control constitute said cities actual parties in interest with respect
to the financial cost and administration of said hospital?
(2) Has the General Court the constitutional right to add to the Essex
county tuberculosis hospital district, established under said sections
seventy-eight to ninety, said cities now exempt, in the manner provided
in the bill printed as Senate document number four hundred and sixty-
eight?
JAY R. BENTON, ATTORNEY-GENERAL. 411
Sections 78 to 90, inclusive, of G. L., c. Ill, as amended
by St. 1922, c. 393, contain provisions requiring the county
commissioners of certain counties, including Essex, to
provide tuberculosis hospitals for cities and towns having
a population of less than fifty thousand which do not already
have adequate hospital provision. It is provided that the
county commissioners, subject to the approval of the
Department of Public Health, shall erect one or more
hospitals, with an exception in the case of counties having
a total population of less than fifty thousand; that they
shall apportion the cost to the several towns liable, in
accordance with their valuation used in assessing county
taxes; that they shall also apportion the cost of main-
tenance of such hospitals in the same manner; that all sums
collected shall be paid into the county treasury; and that
the county commissioners shall be trustees of the hospitals
so erected. Section 91 provides: —
Cities having more than fifty thousand inhabitants, and also cities and
towns having less than fifty thousand inhabitants and already possessing
and continuing to furnish adequate tuberculosis hospital provision, shall
be exempt from the provisions of sections seventy-eight to ninety, in-
clusive.
St. 1923, c. 429, entitled '^An Act authorizing the ap-
portionment of the expense incurred by the county of
Essex for a tuberculosis hospital within said county,"
contains provisions relative to the apportionment of ex-
penses already incurred and the total cost of the tuberculosis
hospital constructed in the county of Essex under the
provisions of G. L., c. Ill, §§ 78-91, to the cities and towns
in said county, except the cities of Haverhill, Lawrence,
Lynn, Newburyport and Salem, and the collection of sums
so apportioned in conformity with the corresponding pro-
visions in said chapter.
By your first question I understand you intend to ask
whether, under existing law, the cities in Essex County
now exempt are under any liability for the cost of con-
412 OPINIONS OF THE ATTORNEY-GENERAL.
struction and maintenance of the tuberculosis hospital for
Essex County. Since the statutes referred to impose the
whole burden of construction and maintenance on the
remaining cities and towns, for the benefit of whose in-
habitants the hospital was erected, and expressly exempt
the five cities enumerated, I see no ground upon which
it can be said that the exempted cities are under any ob-
ligation whatever in the matter. I therefore answer your
first question in the negative.
The fundamental inquiry presented by your second
question is whether a part of the cost of construction and
maintenance of the tuberculosis hospital for Essex County
may be assessed upon the five cities in said county exempted
by the provisions of previous enactments.
In providing for an apportionment of the cost of a public
undertaking among cities and towns or other political sub-
divisions of the Commonwealth benefited thereby, and also
in shifting the burden thereof, the Legislature has a large
measure of discretion, the exercise of which is not subject
to judicial control, on constitutional grounds, unless it is
purely arbitrary. It is not essential that the burden should
be imposed in proportion to the benefits received. The
expense may properly be assessed with regard to other
considerations as well, such as population, extent of territory
and ability to bear the burden. The subject was carefully
reviewed in Opinion of the Justices, 234 Mass. 612, in which
the justices advised the Senate that in their opinion a statute
changing a previous apportionment of the cost of the bridge
across the Connecticut River between Springfield and West
Springfield, confirmed by final decree of court, and pro-
viding for a new apportionment among the county and
certain towns therein by fixed percentages, would be con-
stitutional. See also Nonvich v. County Commissioners,
13 Pick, 60; Scituate v. WeymoutJi, 108 Mass. 128; Agawam
V. Hampden, 130 Mass. 528; Kingman, petitioner, 153 Mass.
566; Kingman, petitioner, 170 Mass. Ill; Boston, petitioner,
221 Mass. 468.
JAY K. BENTON, ATTORNEY-GENERAL. 413
It is my opinion that a statute changing the previous
law by inchiding in the district served by the Essex County
tuberculosis hospital the five cities previously exempted,
and requiring them to bear a part of the burden of the cost
of its construction and maintenance, apportioned in a way
which, under all the circumstances, would be fair and
reasonable, would be constitutional. Without information
as to the basis of the assessments on the five cities provided
by the bill, the amounts already assessed to and collected
from the remaining cities and towns, the comparative
valuations of all cities and towns in the county, the extent
and condition of hospital facilities now provided by the
five cities, and other pertinent facts, I cannot answer more
definitely your question whether the bill as drawn would be
constitutional.
May 5.
Insurance — Accident Insurance — Group Policies.
Group or blanket policies against loss resulting from accidental injuries are not
authorized under the pro\dsions of the statutes, except such as are within the
provisions of G. L., c. 175, §§ 110 and 133, as amended.
You have asked my opinion upon three questions relative '^^^^ll'^„^°^'
to accident insurance, two of them concerning forms of ^"904"''^^
policies which you have attached to your letter.
Your questions are as follows : —
1. May the commissioner lawfully approve either or both of these
forms as complying with G. L., c. 175, §§ 108 and 109?
2. May a company lawfully issue these forms of policies, assuming
that they each contain the provisions required by said section 108?
3. Do the provisions of said section 108 require or contemplate the
issuance of individual policies to individual insureds?
The forms of policies which you have transmitted plainly
come within the type of policy known s the "group"
policy, which in certain of its forms is sometimes referred
to as a ''general" or "blanket" poUcy, as in G. L., c. 175,
§ 110. The apparent purpose of each of these forms of
414 OPINIONS OF THE ATTORNEY-GENERAL.
policies transmitted is to insure a group of persons, as and
while they are members of a designated club or association,
against loss resulting from accidental injuries. In each
form it is recited that the required premium is paid by the
club or association, and that the members of the club
or association at any given time, whose names appear in a
schedule of members attached to the pohcy, are the insureds.
Persons ceasing to be members cease to be insured, and new
members may be added to the schedule. From the nature
of the insurance itself it is manifest that the club or asso-
ciation is not a beneficiary and secures for itself no protection
under the policy. It is plain that the relation of employer
and employees does not exist between the club, in the one
instance, and the association, in the other, and their re-
spective members.
G. L., c. 175, § 3, provides that —
No company shall make a contract of insurance upon or relative to
any property or interests or lives in the commonwealth, . . . except as
authorized by this chapter or chapters one hundred and seventy-six and
one hundred and seventy-seven.
There is no specific authority given by chapter 175 to
issue any general, blanket or group poUcy other than group
life insurance pohcies, defined by G. L., c. 175, § 133, as
amended by St. 1921, c. 141, and those mentioned in G. L.,
c. 175, § 110, as amended by St. 1921, c. 136. The forms
of pohcies under consideration do not come within the
terms of either of these last mentioned enactments, whose
provisions relate to groups in which the relation of em-
ployer and employees exists as between the one paying the
premium and the insureds.
In my opinion, general, blanket or group accident in-
surance policies of the character of those transmitted with
your letter may not be lawfully written, in view of the
wording of G. L., c. 175, § 3, and of the fact that there is
no specific statutory authorization for such forms of pohcies.
I therefore answer your first two questions in the negative.
JAY R. BENTON, ATTORNEY-GENERAL. 415
I answer your third question to the effect that G. L., c. 175,
§ 108, construed in connection with the said chapter as a
whole, requires and contemplates the issuance of individual
policies to individual insureds as opposed to general, blanket
or group policies. «
Inspector of Animals — Nomination — Approval by
Director of Animal Industry — Board of Select-
men — Term of Office.
No nominee for the position of inspector of animals can be appointed until approved
by the Director of Animal Industry.
A nomination made by a board of selectmen may be withdrawn by a new board
of selectmen and another nominee named if no action has in the meantime
been taken by the Director of Animal Industry with respect to the first nomi-
nation.
A former appointee holds over and can legally perform the duties of inspector of
animals until the approval by the Director of Animal Industry of one nomi-
nated as his successor.
You request my opinion as follows : —
To the Com-
missioner of
Conservation.
1924
In the town of Bedford the regular annual election of a member of the May 9.
board of selectmen took place during the first week in March. A man
by the name of Kelley was said to have been elected by two votes. A
recount was asked for and the election for selectman was declared a tie.
On March 22 the board of selectmen, under G. L., c. 129, § 15, sent in
the nomination of Dr. Chester L. Blakely as inspector of animals for the
year ending March 31, 1925. This nomination, however, did not bear
the signature of the newly elected (?) Kelley, but did bear the name of
Duane F. Carpenter, whom Kelley (if elected) was to succeed.
The Director of Animal Industry was interviewed by a representative
of the losing side at the regular town election, whose candidate was
Claude A. Palmer, and was asked to hold up the matter of approval of
the nomination of Dr. Blakely.
The Director of Animal Industry desires an opinion by the Attorney
General as to whether this nomination of Dr. Blakely is properly before
him for action.
A special town election was held March 31, 1924, and Kelley was de-
feated by Claude A. Palmer by six votes. Directly thereafter, on March
31, a meeting of the new board of selectmen was held, and a majority of
the board. Palmer and another, drafted a letter to the director nominating
as inspector of animals Dr. Immanuel Pfeiffer.
416 OPINIONS OF THE ATTORNEY-GENERAL.
The Director of Animal Industry desires the opinion of the Attorney-
General as to whether this nomination of Dr. Immanuel Pfeiffer to the
position of inspector of animals is properly before him for action.
If in the opinion of the Attorney-General both nominations are properly
before the director for action, does the decision rest with him as to which
nomination shall be approved, assuming that, in his opinion, both nomi-
nees possess the proper qualifications for the position?
The opinion of the Attorney-General is requested as to whether, in
case no action is taken by the director, the appointee of last year (1923)
holds over, and can he legally perform the duties of the position?
G. L., c. 129, § 15, provides as follows: —
The mayor in cities, except Boston, and the selectmen in towns shall
annually, in March, nominate one or more inspectors of animals, and
before April first shall send to the director the name, address and occu-
pation of each nominee. Such nominee shall not be appointed until
approved by the director. In cities at least one such inspector shall be
a registered veterinary surgeon.
Under this section no nominee can be appointed until
approved by the Director of Animal Industry. Under the
facts submitted by you it does not appear that the director
approved or took any action respecting the nomination
of Dr. Chester L. Blakely as inspector of animals, which
nomination was forwarded to the director on March 22,
1924. Subsequently, on March 31, 1924, a meeting of
the new board of selectmen was held and a majority of
said board drafted and forwarded to the Director of Animal
Industry a communication wherein it is stated that the
director is "respectfully requested to disregard the nomi-
nation of Dr. Chester L. Blakely of Lexington, as made on
or about March 22, 1924, and to consider instead the ap-
pointment of Dr. Immanuel Pfeiffer."
Where an authority is conferred on a board in relation
to public business it may be exercised by a majority and all
need not join. Codrnan v. Crocker, 203 Mass. 146, Cooley
V. 0'Con?ior, 12 Wall. 391.
The board of selectmen is a continuing body, and, as
such, acted within its rights when it withdrew a nomination
JAY R. BENTON, ATTORNEY-GENERAL. 417
which had not been acted upon and substituted therefor
a new nomination. It accordingly follows that the nomi-
nation of March 31st is the nomination now before the
Director of Animal Industry for his approval or disapproval,
and I so answer your first, second and third questions.
The general rule is that, unless otherwise provided, an
officer continues to hold office until the appointment or
election and qualification of his successor. See. G. L., c.
41, § 2. Boston v. Sears, 22 Pick. 122, 130. In accord-
ance with this rule I am of the opinion that the appointee
of last year (1923) holds over and can legally perform the
duties of the position of inspector of animals until the
approval of a nominee by the Director of Animal Industry,
and I so answer your foiu'th and last question.
Hawkers and Pedlers — License — Alien.
A local ordinanoe or regulation iiroviding for the licensing of hawkers and pedlers
of fish, fruit and vegetables, passed under authority of G. L., c. 101, § 17, is
void if it purported to authorize the granting of a license to an alien who has
not declared his intention of becoming a citizen of the United States.
You have requested my opinion as to whether or not a ^issJjfnfr°of'
licensing board or other officer of any city where there is {"nduftHe^.
an ordinance or regulation providing for the licensing of ivuyls.
hawkers and pedlers of fish, fruits and vegetables, may
grant such a license to an alien who has not declared his
intention of becoming a citizen of the United States.
First, I think I ought to point out that the Attorney-
General does not give authoritative opinions to municipal
officers, it having been held many times that they are not
entitled to such an opinion, and therefore are not bound
by it. There was some intimation that this opinion con-
cerned a local situation in New Bedford; but I am proceed-
ing upon the ground that the question is asked because the
information is necessary in the discharge of the duties of
the Division of Standards under G. L., c. 101, and par-
ticularly section 32.
418 OPINIONS OF THE ATTORNEY-GENERAL.
Coming now to your specific question. G. L., c. 101,
§ 17, is based upon R. L., c. 65, § 15. This section of the
Revised Laws was the subject of numerous amendments.
In 1916, as a result of Gen. St. 1916, c. 242, § 3, the pertinent
provisions read as follows : —
Cities and towns may by ordinance or by by-law, not inconsistent
with the provisions of this chapter, regulate the sale and exposing for
sale by hawkers and pedlers of said articles without the payment of any
fee, and may affix penalties for the violation of such regulations. Cities
and towns may require hawkers and pedlers of fish, fruit and vegetables
to be licensed, provided that the license fee does not exceed that prescribed
by section nineteen of this chapter, as amended, for a license embracing
the same territorial limits.
The next amendment, Gen. St. 1918, c. 257, § 261, changed
the form of this part of section 15 so as to read as follows: —
Cities and towns may by ordinance or by-law, not inconsistent with
the provisions of this chapter, regulate the sale or barter, and the carrying
for sale or barter or exposing therefor, by hawkers and pedlers, of said
articles without the payment of any fee; may in like manner require
hawkers and pedlers of fish, fruit and vegetables to be licensed, provided,
that the license fee does not exceed that prescribed by section nineteen
of this chapter, and acts in amendment thereof and in addition thereto,
for a license embracing the same territorial limits; and also may in like
manner affix penalties for the violation of such regulations, ordinances
and by-laws.
The final change to date was by St. 1923, c. 285. The
pertinent provision of the statute with which we are now
concerned reads as follows : —
The aldermen or selectmen may by regulations, not inconsistent with
this chapter, regulate the sale or barter, and the carrying for sale or
barter or exposing therefor, by hawkers and pedlers, of said articles with-
out the payment of any fee; may in like manner require hawkers and
pedlers of fish, fruit and vegetables to be licensed except as otherwise
provided, and may make regulations governing the same, provided that
the license fee does not exceed that prescribed by section twenty-two for
a license embracing the same territorial limits; and may in like manner
JAY R. BENTON, ATTORNEY-GENERAL. 419
affix penalties for violations of such regulations not to exceed the sum of
twenty dollars for each such violation. A hawker and pedler of fish,
fruit and vegetables licensed under this section need not be Ucensed under
section twenty- two.
The insertion by this amendment of the phrase ''in like
manner" discloses, in my opinion, a legislative intent
that the aldermen or selectmen may require hawkers and
pedlers of fish, fruit and vegetables to be licensed, etc.,
only by regulations not inconsistent with the other pro-
visions of G. L., c. 101. G. L., c. 101, § 22, clearly indicates
an intention that hawkers and pedlers shall be licensed to
sell fish, fruit and vegetables only if they are citizens of the
United States or have declared an intention to become
citizens of the United States. I am therefore of the opinion
that a city ordinance which purported to authorize the
granting of a hawker's and pedler's license for the sale of
fish, fruit and vegetables to an alien who had not declared
his intention of becoming a citizen of the United States
would exceed the authority granted by G. L., c. 101, § 17,
and would be void.
A further practical argument in favor of this view is found
in the last sentence of G. L., c. 101, § 17, which provides
that "a hawker and pedler of fish, fruit and vegetables
licensed under this section need not be licensed under
section twenty-two." This provision was added by an
amendment subsequent to Gen. St. 1918, c. 257, § 261,
quoted above, and I do not, therefore, rest my opinion
upon it. It would, however, seem a further indication
of a legislative intent that only those hawkers and pedlers
who could be licensed under section 22 should be eligible
for a license under section 17.
420 opinions of the attorney-general.
Eminent Domain — Extent of Taking — Fixtures.
Floats used by a yacht club, and not attached to the land otherwise than by moor-
ings, are personal property, and are not included in a taking of realty.
i!i?iifan Distric't You have asked my opinion as to whether certain floats,
omnussion. formerly the property of the Savin Hill Yacht Club, were
-^' at the time of the taking of land of the Savin Hill Yacht
Club by the Board of Metropolitan Park Commissioners,
on or about December 23, 1914, real or personal property.
A taking was made by the board, recorded in Suffolk
Deeds, book 3856, page 241, of "all lands and rights in land,
all easements, privileges and appurtenances of every name
and nature thereto belonging," among other parcels, of
"land and lands of the Savin Hill Yacht Club" (bounded
and described) "and flats above or under water in Dorchester
Bay and Savin Hill Cove and creeks and streams flowing
into said cove."
I am informed that at the time of the taking there was
a building on the land, firmly affixed to the soil, with an
elevated platform leading from the building, which was
used as a yacht club, to a runway, which in turn led to the
floats in question. The upper end of the runway was affixed
to the platform and its lower end rested upon the float
nearest shore, but was not affixed thereto otherwise than
by its weight. The floats in question, of which there were
several, during the season when sailing for pleasure was
practicable, floated on the surface of the water and were
kept from drifting away or out of alignment by chains,
which were run through rings or holes made for the purpose
in the floats and were then fastened to piles driven into the
mud in a line extending out from the shore. The floats
were not attached to these piles by any rigid connections.
They rose and fell with the tide. They were the ordinary
type of float used for landings for small boats, and were
capable of being towed from place to place, and might be
used in connection with other landing places. They were
easily unloosed from their moorings to the piles. During
JAY R. BENTON, ATTORNEY-GENERAL. 421
the seasons when sailing near the club was not practicable
they were often unmoored from the pilings and dragged
upon the beach, where they were left without any per-
manent fixation to the land until again required for use,
when they were once more placed in the water and moored
to the piles. I am also informed that these floats, when
detached from their moorings, can be sold and used by pur-
chasers in other places of a similar character to which they
can be towed.
If these floats had been so attached to the land by the
previous owners of the soil as to become fixtures, they would
have become real property as between the Commonwealth
and the Yacht Club, and title to them would be vested in
the Commonwealth under the terms of the taking.
In determining whether articles which in their original
condition were personal property, as were these floats,
have become fixtures, a variety of tests have to be taken
into consideration. These tests, as between vendor and
vendee of the land upon which the property is situated,
and for the purpose of determining the question here in-
volved, wherein the Commonwealth and the Yacht Club
are to be treated substantially as vendor and vendee, have
been laid down by our courts as follows: The nature of
the article, the object, the effect and the mode of its an-
nexation. Smith V. Bay State Saimigs Bank, 202 Mass.
482; Houle v. Ahramson, 210 Mass. 83. Neither of these
tests is of itself sufficient.
The floats in question are, in their general nature, person-
alty. Thej^ are capable of being moved from place to place
and of being used effectively in other locations than this
particular estate. Their bulk is not an insuperable obstacle
to their transportation by land, and they can easily be moved
by water. There is nothing about their general form or
design which tends to show any particular object or motive
in the minds of the owners relative to a particular or un-
usual relation between them and the realty with which
they were connected, nor were they of such a character
422 OPINIONS OF THE ATTORNEY-GENERAL.
or construction as to have in themselves any pecuUar
relation to the surrounding land which might enhance its
value or usefulness more than any other articles of a similar
type. They were not annexed to the piles or to the land
in any manner or by any means which prevented them
from being easily separated therefrom.
Taking all these facts into consideration, I am of the
opinion that the floats at the time of the taking were not
fixtures in such a sense that they had become part of the
realty, and that they were personal property, title to which
remained in the owner notwithstanding the taking.
Labor — Children — Regulation of Employment.
The provisions of G. L., c. 149, §§ 61, 62 and 65, regulating the employment of
minors, are applicable to minors when employed in co-operating factories,
manufacturing, mechanical or mercantile establishments or workshops, unless
such employment is in the course of receiving manual training or industrial
education in an approved school, under G. L., c. 149, § 85.
A child between the ages of fourteen and sixteen employed in anj' such establish-
ment is required by G. L., c. 149, § 80, to secure a special certificate.
To the Com- You reouest my opinion on the following questions : —
missioner of -i ^ x o -i
Labor and
Industries.
1924 1. Do the regulations relating to hours of employment and night
work for minors under sixteen apply to such minors when employed in
a co-operating factory, manufacturing, mechanical or mercantile estab-
lishment or workshop; or may such minors be employed in such estab-
lishments for more than eight hours in any one day or for more than
forty-eight hours in any one week?
2. May such minors be employed in co-operating establishments at
the occupations and processes listed in G. L., c. 149, §§ 61 and 62, as
prohibited employments for minors under sixteen years of age and minors
under eighteen years of age?
Provisions regulating the employment of children of
various ages are contained in G. L,, c. 149, §§60 to 83,
inclusive, some of which were amended by St. 1921, cc.
351 and 410. Special reference should be made to the
following sections:
J
JAY R. BENTON, ATTORNEY-GENERAL. 423
Section 60, as amended by St. 1921, c. 410, § 2, prohibits
the employment of minors under fourteen in any factory,
workshop, manufacturing, mechanical or mercantile estab-
lishment or in certain specified occupations, and regulates
their hours of labor.
Sections 61 and 62 prohibit the employment of minors
under sixteen and eighteen, respectively, in certain specified
hazardous occupations.
Section 65, as amended by St. 1921, c. 351, § 1, and c.
410, § 3, regulates the hours of labor of children under
sixteen. It is as follows : —
No person shall employ a minor under sixteen or permit him to work
in, about or in connection with any establishment or occupation named
in section sixty, or for which an employment certificate is required, for
more than six days in any one week, or more than forty-eight hours in
any one week, or more than eight hours in any one day, or, except as
provided in section sixty-nine, before half past six o'clock in the morning,
or after six o'clock in the evening. The time spent by such a minor in
a continuation school or course of instruction as required by section
twenty-two of chapter seventy-one shall be reckoned as a part of the
time he is permitted to work.
Section 69, as amended by St. 1921, c. 410, § 1, regulates
the employment of children in so-called street trades.
Section 85 contains certain limitations upon the applica-
tion of sections 60 to 83, inclusive. It is as follows : —
Sections sixty to eighty-three, inclusive, shall not apply to the juvenile
reformatories, other than the Massachusetts reformatory, or prevent
minors of any age from receiving manual training or industrial education
in or in connection with any school which has duly been approved by the
school committee or by the department of education.
Section 86, as amended by St. 1921, c. 351, § 2, requires
employees of children between fourteen and sixteen in any
factory, workshop, manufacturing, mechanical or mercan-
tile establishment, or in any industrial employment, to
procure and keep employment certificates, with the fol-
lowing proviso : —
424 OPINIONS OF THE ATTORNEY-GENERAL.
. . . provided, that pupils in co-operative courses in public schools
may be employed by any co-operating factory, manufacturing, mechani-
cal or mercantile establishment or workshop, or any employment as de-
fined in section one, upon securing from the superintendent of schools a
special certificate covering this type of employment. . . .
It requires also special certificates covering the employment
of children between fourteen and sixteen in private domestic
service or service on farms.
The inquiry made by your questions is : How far do section
85 and the proviso in section 86 limit the application of
the preceding sections?
The proviso in section 86, in my opinion, is merely an
exception to the preceding provision in that section. It
relates to the employment of pupils in co-operative courses
in public schools. The term "co-operative courses" is
defined in G. L., c. 149, § 1, as meaning "courses approved
as such by the department of education and conducted in
public schools where technical or related instruction is given
in conjunction with practical experience by employment
in co-operating factories, manufacturing, mechanical or
mercantile establishments or workshops." Such pupils
may be so employed upon securing a special certificate
instead of the employment certificate otherwise required.
Section 85 contains two different provisions with respect
to sections 60 to 83, inclusive: first, that they shall not
apply to juvenile reformatories other than the Massa-
chusetts Reformatory; and secondly, that they shall not
"prevent minors of any age from receiving manual training
or industrial education in or in connection with any school
which has duly been approved by the school committee
or by the department of education." I interpret this to
mean that courses of instruction in manual training or
industrial education may be given in approved schools
although they involve employments and hours of labor which
are contrary to the provisions of sections 60, 61, 62 or 65,
and that schools giving courses of instruction inconsistent
with the terms of those sections may be approved by the
JAY R. BENTON, ATTORNEY-GENERAL. 425
school committee or by the Department of Education.
Of course, the statutory regulations are not to be lightly
disregarded; they should be followed as far as possible
consistently with the educational object sought to be
achieved.
It may be suggested that so far as concerns sections 60
and 65, section 85 is imphedly repealed by St. 1921, c. 410.
That act amended G. L., c. 149, § 69, by adding a provision
permitting boys over twelve to engage in certain street
trades under certain circumstances. It also amended G. L.,
c. 149, §§ 60, 65, in substance, by inserting the words
''except as provided in section sixty-nine" before certain
substantive provisions of those sections. In my opinion,
the Legislature did not mean, by expressing this exception,
to exclude the exception expressed in section 85. They
observed a possible inconsistency between section 69, with
which they were principally dealing, and some portions of
sections 60 and 65; and so they provided that in case of
conflict section 69 should prevail.
My answer to your questions, specifically, is that the
regulations of sections 61, 62 and 65 are apphcable to minors
when employed in co-operating factories, manufacturing,
mechanical or mercantile estabhshments or workshops,
unless such employment is in the course of receiving manual
training or industrial education in connection with an
approved school, under G. L., c. 149, § 85. In that case
those regulations will not prevent the giving of such in-
struction to minors of any age. A child between fourteen
and sixteen employed in any such establishment is required
by section 86 to secure a special certificate covering that
type of employment.
426 opinions of the attorney-general.
Insurance — Laundry Insurance — Bond — Rebate.
A foreign insurance company not authorized to transact the kinds of business
specified in the first, second or eighth clauses of G. L., c. 175, § 47, cannot
insure a laundry company against hazards necessarily incidental to such kinds
of business, but may, under section 105, execute, as surety, a bond to protect
the customers against the default of the laundry company to pay losses from
such hazards.
A retention of a portion of the service charge made by the laundry company for
the payment of premiums does not, under certain circumstances, constitute
an unlawful rebate.
m?ssionS°^' You havG requested my opinion upon certain questions
inMu-ance. pclative to a transaction between an insurance company-
May 27. J 1 J
— and a laundry company.
The facts connected with this transaction, as set forth
in your letter, differ materially from those which existed
in two cases concerning transactions between insurance
companies and laundry companies upon which I rendered
opinions to your department on June 29, 1923. (Not
published.) You state in your letter: —
Some further question is now raised as to the legality of the proposition
presently employed by this company. This company is a foreign insur-
ance company licensed to transact in this Commonwealth the classes of
business specified in the fourth, fifth, sixth, seventh and twelfth clauses of
section 47 of said chapter 175. It cannot, under sections 51 and 152
of said chapter, lawfully transact the kinds of business specified in the
first, second or eighth clauses of said section 47.
The laundry company enters into an agreement with the insurance
company. The laundry company executes as principal what purports
to be a bond, which is also executed by the insurance company as surety,
guaranteeing the performance of said agreement.
It appears from a letter written on behalf of the insurance company
that the agreement is apparently intended to cover loss or damage caused
by fire, stealing, burglary or, in fact, any hazard.
The particular laundry company referred to in the documents attached
to my letter, I am informed, retains fifty per cent of the premiums which
it collects, remitting the balance to the insurance company. Twenty per
cent of the premiums retained by this laundry company is for a reserve
fund out of which it may pay claims of its customers, not exceeding $100.
The remainder it retains ostensibly for other costs. It apparently makes
JAY R. BENTON, ATTORNEY-GENERAL. 427
no express written contract with its clients, but collects from them one
cent for each bundle of laundry and specifically charges said sum to the
client upon its bill.
I respectfully request your opinion on the following questions:
(1) Is the said agreement one which the insurance company may
lawfully make under said chapter 175?
(2) Is the said agreement or bond in efifect a contract of insurance
made by this insurance company against loss or damage by fire or any
of the other hazards specified in the first, second or eighth clause of said
section 47?
(3) Does said agreement or bond constitute an insurance contract by
this insurance company against the hazards specified in more than one
of the clauses of said section 47, and is it, therefore, contrary to section
52 of said chapter 175?
(4) If the preceding question is answered in the affirmative, may the
commissioner lawfully approve said agreement or said bond under said
section 52?
(5) Is the said bond an obligation upon which the said insurance com-
pany may lawfully act as surety under section 105 of said chapter 175?
(6) Does the allowance to a laundryman by the insurance company
of a portion of the premiums collected by him constitute a rebate in vio-
lation of sections 182 to 184 of said chapter 175, (a) if used in whole or
in part by the laundryman to pay claims of his customers; (6) if used in
part to pay such claims and in part to defray expenses in connection with
the operation of the plan; and (c) if retained entirely by the laundryman
for his personal use?
In the case presented by your letter and the documents
annexed thereto it appears that a surety bond in which a
laundry company is named as principal and certain of its
customers severally appear to be obligees, with an insurance
company designated as surety, has been executed by the
laundry company and the insurance company. In this
bond it is recited that the laundry company has voluntarily
waived its legal defenses to any claim of its customers
for any bundle of laundry delivered to the laundry com-
pany and not returned by it in like good order, ordinary
laundry wear excepted, and that the laundry company is
desirous of giving further assurance to its customers that
their claims will be promptly adjusted. The laundry
company binds itself, to each of its customers who shall
428 OPINIONS OF THE ATTORNEY-GENERAL.
pay a service charge, that it will pay promptly, as liquidated
daniages, to any one of them in settlement of any claim
made by any of them for any bundle delivered to the laundry
company and not returned in like good order, ordinary
laundry wear excepted, as that in which it was received,
the fair value of the goods; provided that the claim is not
in excess of a stated amount and is made within thirty days.
And the insurance company obligates itself to pay to any of
such customers the amount so due upon any claims against
the laundry company, in the event that the laundry com-
pany fails to make payment.
I am informed that the laundry company sends to each
of its customers a slip, of which the following is a copy :
A New Service.
Do 3^ou know that a laundry is not legally responsible for the customer's
goods unless the laundry is proven negligent? While we try to use all
reasonable care, accidents do happen from many causes, causing substan-
tial loss. We prefer to adjust such matters promptly and to avoid the
delay, friction and expense of litigation, in order to give our customers the
most complete service. We, therefore, voluntarily waive our legal de-
fenses to any claim made for any bundle delivered to us and not returned
in lOvC good order, ordinary laundry wear excepted, and we have taken a
surety company bond to secure prompt payment to you, as liquidated
damages in settlement of any such claim, the fair value of the goods, but
not exceeding twenty times the laundry charge.
The charge for this service is one cent per bundle to defray the expense
of the service and of the surety company bond. We will arrange for this
service with our next deliveiy.
It is to be noted that in this slip the laundry company
states :
We, therefore, voluntarily waive our legal defenses to any claim made
for any bundle delivered to us and not returned in like good order . . .
and we ha^'e taken a suretj'' company bond to secure prompt paj'^ment to
you, as liquidated damages in settlement of any such claim, the fair
value of the goods, but not exceeding twenty times the laundry charge.
Concurrently with the execution of the bond the insurance
company and the laundry company execute an "agreement."
Clause 8 of this agreement reads as follows : — -
JAY R. BENTON, ATTORNEY-GENERAL. 429
The laundry may settle, and charge to the account of the corporation,
clarnis other than those enumerated in paragraph 3 above; provided that
settlements so made and charged shall not exceed 10% per 100 bundles,
delivered or returned to customers, in any calendar month, except with
the consent of the corporation. If and when such settlements for any
calendar month exceed 10c per 100 bundles, the corporation will pay the
excess.
The laundrj"- shall promptly furnish to the corporation such infor-
mation as may be required by it in reference to claims paid or filed, and
the corporation shall have the option of adjusting the pending claim di-
rect with the customer.
In event claim for any one or more of several bundles, resulting from
any one event, be settled for less than the maximum limit per bundle
fixed in paragraph 2, the difference maj^ be applied to settlement for the
other bundles for which the laundry deems it necessary to paj' more than
the agreed limit; provided that the maximum liability of the corporation
be not thereby increased.
The purport and intent of the agreement are to provide
for the payment to the laundry company by the msurance
company of the amount of all losses which the former may
sustain by reason of damage to the contents of the laundry
bundles of its customers while in its possession. The
agreement permits the adjustment and payment of claims
in the first instance by the laundry company, but reserves
to the insurance company the right, at its option, of making
any particular adjustment with the customer direct. The
agreement is in effect a policy of insurance by the insurance
company against loss which the laundry company may
sustain by damage from all causes or hazards to the property
of its customers, of which it is the bailee. The liability
of the insurance company upon this agreement is in addition
to its liability as surety upon the bond, and is of a different
character. The voluntary waiver by the laundry com-
pany of defenses, and acceptance of a certain mode for the
purpose of determining liquidated damages, does not affect
the nature of its agreement with the insurance company.
Upon its bond the insurance company is liable to the
laundry company's claimants upon the default of the
laundry company in paying their just claim for damages.
430 OPINIONS OF THE ATTORNEY-GENERAL.
Upon the agreement the insurance company is liable to
the laundry company for the amount of the latter's losses
upon such claims.
You inform me in your letter that this insurance com-
pany cannot lawfully transact the kind of business specified
in the first, second, or eighth clauses of G. L., c. 175, § 47.
The agreement which the insurance company enters into
with the laundry company is in effect a contract of in-
surance against losses to property in the possession of the
laundry company from any and all causes or hazards.
Many of such causes or hazards, against which the agree-
ment purports to protect the laundry company, are those
specifically mentioned in the first, second and eighth clauses
of section 47. As business relative to insurance against
such causes cannot lawfully be transacted by this insurance
company, this agreement, which purports to insure against
damage from such causes, among others, is not one which
this company may lawfully make. I therefore answer
your first question in the negative.
I answer your second question, so far as it relates to the
agreement, in the affirmative, but in the negative as it
relates to the bond.
I answer your third question, in so far as it relates to the
agreement, in the affirmative, and, in so far as it relates to
the bond, in the negative.
I answer your fourth question to the effect that the bond
is not a contract of insurance and does not require the
approval of the Commissioner under the provisions of G. L.,
c. 175, § 52. So far as your question relates to the agree-
ment, I answer that in its present form, for the reason that
it covers losses from causes as to which this insurance com-
pany is not authorized to transact business, the Com-
missioner may not lawfully approve it.
I answer your fifth question in the affirmative.
Construing the terms of the particular agreement now
before me, I am of the opinion that the retention of money
arising from the service charge mentioned in paragraph 4
JAY R. BENTON, ATTORNEY-GENERAL.
of the agreement by the laundry company does not con-
stitute a rebate in violation of G. L., c. 175, §§ 182-184,
under any of the conditions mentioned in your question as
(a), (b) and (c). A particular arrangement not provided
for in the agreement, by which a particular assured was
permitted to retain a portion of the premium mentioned
in paragraph 7 for any purpose other than the payment
of claims upon which the insurance company was to in-
demnify the laundry company, would be unlawful under
the terms of sections 182-184.
431
May 27.
Insurance — Investment of Funds of Domestic Life
Companies — Securities of Equipment Trusts.
G. L., c. 175, § 66, does not prohibit a domestic life insurance company from invest-
ing one-quarter of its reserve in the notes of an equipment trust not a corpora-
tion, the owners of whose stock or evidences of indebtedness may be liable to
an assessment except for taxes.
Section 66 does not prohibit a domestic life company from investing three-quarters
of its reserve in equipment trust notes which comply with paragraph 6 of
section 63, nor does it forbid investment of one-quarter of the reserve in an
unincorporated business or its securities, provided that such investment be
secured by collateral.
You have asked my opinion regarding various matters ^°J,^onS°^'
connected with the investment of certain funds of domestic ^Ygir*"^
life insurance companies under G. L., c. 175, as amended.
Your first question is : —
Does G. L., c. 175, § 66, as amended, prohibit any domestic life com-
pany from investing one-quarter of its resei*ve in equipment trust notes
not complying with the provisions of paragraph 6 of section 63?
St. 1923, c. 297, amends G. L., c. 175, as previously
amended by St. 1921, c. 215, by striking out sections 63
and 66 and inserting in place thereof two new sections,
numbered 63 and 66, respectively.
Section 63 now provides, in part : —
The capital of any domestic company, other than life, and three fourths
of the reserve of any domestic stock or mutual life company, shall be in-
vested only as follows : — ...
432 OPINIONS OF THE ATTORNEY-GENERAL.
6. In the notes of any equipment trust created in behalf of any rail-
road coming within the terms of paragraph four or five, provided that the
plan of such trust, in case of any railroad coming within the terms of
paragraph four, includes an initial cash payment of at least twenty-five
per cent, and, in case of any railroad coming within the terms of para-
graph five, of at least forty per cent, and that such notes mature not
later than fifteen years from the date of issue.
Section 66, as now amended, provides, in part : —
Except as hereinbefore authorized, no domestic life company shall in-
vest any of its funds in any unincorporated business or enterprise or in
the stocks or evidence of indebtedness of any corporation the owners or
holders of which stock or evidence of indebtedness may in any event be
or become liable on account thereof to any assessment except for tajes,
nor shall such life company invest any of its funds in its own stock or in
the stock of any other company. No such company shall invest in,
acquire or hold directly or indirectly more than ten per cent of the capital
stock of any corporation, nor shall more than ten per cent of its capital
and surplus be invested in the stock of any one corporation. No such
company shall subscribe to or participate in any underwriting of the
purchase or sale of securities or property, or enter into any transaction
for such purchase or sale on account of said company jointly with any
other person nor shall any such company enter into any agreement to
withhold from sale any of its property, but the disposition of its property
shall be at all times within the control of its board of directors.
Nothing in this section or in section sixty-three shall prevent such
company from investing or loaning any funds, not required to be invested
as provided in section sixty-three, in any manner that the directors may
determine; provided, that such funds shall not be invested in the pur-
chase of stock or evidence of indebtedness prohibited by the preceding
paragraph, and provided that no loan of such funds shall be made to an
individual or firm unless it is secured by collateral security.
The manner in which a domestic Hfe insurance compan}^
shall deal with the investment of three-fourths of its reserve
is governed by said sections 63 and 66. The manner in
which it shall deal with the remaining one-fourth of its
reserve is governed by the second para